Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 November 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
John Didulica (Australia), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
Mohamed Mecherara (Algeria), member
on the claim presented by
the club, A, X,
Represented by Mr D,
as Claimant,
against
the player, B, X,
and
the club, C, Y,
as Respondents,
regarding a contractual dispute arisen on the basis of an employment contract signed
between the Claimant and the player.
I.
Facts of the case
1.
The X player B, (hereinafter also: the Player), born 20 July 1981, and the X club, A,
(hereinafter also: the Claimant), entered into an employment agreement valid
from 5 August 2002 until 4 August 2007. This agreement provided that in the
event of a breach of the employment agreement, compensation would be paid in
the amount of … 1,000,000. At the same time, the parties agreed that if the
breach of the agreement related to an international transfer, compensation in the
amount of USD 1,000,000 would be due.
2.
On 11 July 2005, the Claimant filed a claim against the Y club, C, (hereinafter also:
the Respondent), and the Player in front of FIFA for breach of the aforementioned
employment agreement and alleged the following:
- In June 2004, the Respondent wanted to sign four of the Claimant’s players,
including the Player. In June 2004, the Claimant and the Respondent had an
exchange of correspondence relating to the transfer of the Player ending with
the Respondent’s written offer dated 18 June 2004 for a compensation of USD
850,000. The Claimant asserts having accepted this offer, but the Respondent
then orally cancelled the transaction.
- The Claimant further asserts that the Player requested the immediate
termination of the contractual relationship with the Claimant on 29 June 2004
before a X court, in order to be able to enter into an agreement with another X
club. During these proceedings, also the penalty clause relating to the breach of
contract contractually agreed between the Claimant and the Player was
examined. On 16 July 2004, the X court authorized the Player to enter into an
agreement with another X club against a deposit of … 949,490.10. The issuance
of an international transfer certificate (ITC) for the Player in this respect was
expressly declined.
- On 16 July 2004, the Player allegedly signed a contract with the X club, E
(hereinafter: E).
- On 20 July 2004, the Y-FA (YYY) filed a request with the X-FA (XXX) for the
issuance of the Player’s ITC. The ITC was then not issued.
- On 21 July 2004, the Player ceased employment with the Claimant.
- On 27 July 2004, the termination of the contractual relationship between the
Player and the Claimant following a court order was registered with the XXX
and an employment agreement took effect between E and the Player.
- On 3 August 2004, a mention was included in the Player’s registration record
that the Player could not be transferred to any foreign club.
- On 21 September 2004, E initiated a resumption of the proceedings which had
been conducted before the labour court of …, X, by petitioning the appellate
Club A., X/ Player B, X & Club C, Y
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court to permit the Player to be released for international transfers as well. This
request was rejected on 27 September 2004.
- The Claimant asserts that by seeking his clearance to play in another club
without cause during the term of the employment agreement concluded with
the Claimant and by having signed an employment contract with the
Respondent and having been transferred to the Respondent without the
issuance of the relevant ITC, the Player violated his employment agreement and
acted in breach of article 21 of the FIFA Regulations for the Status and Transfer
of Players (2001 edition), (hereinafter: the Regulations).
3.
Consequently, the Claimant requested that:
a) The Player be ordered to pay compensation for termination of the employment
agreement without just cause in the amount of the contractually agreed
penalty clause of USD 1,000,000. In the alternative, the Claimant claims
compensation of USD 850,000, which corresponds to the offer made by the
Respondent on 18 June 2004 for the transfer of the Player, respectively, plus 5%
interest from the judgment until payment,
b) To impose a 6-months ban on the Player, within the meaning of article 23 par. 1
lit. c of the Regulations,
c) To declare the Respondent jointly and severally liable in respect of the
compensation to be paid by the Player,
d) To impose a transfer ban on the Player, within the meaning of article 23 par. 2
lit. a of the Regulations,
e) To impose a suspension on the Respondent, within the meaning of article 23
par. 2 lit. d of the Regulations,
f) To oblige the Respondent to pay the Claimant USD 850,000 plus 5% interest
from the judgment until payment.
4.
At the request of FIFA, the YYY made the following clarifications on 31 January
2006:
- On 20 July 2004, the YYY filed a request with the XXX for the issuance of the
Player’s ITC.
- On 21 July 2004, the XXX issued an ITC. This ITC mentioned E as the Player’s last
club.
- On 27 July 2004, the XXX requested that the aforementioned ITC, which had
been issued and sent to the YYY, be ignored; it had been issued by mistake. The
Player was contractually bound to the Claimant until 4 August 2007.
- On 4 August 2004, the YYY filed a new request with the XXX for the issuance of
the ITC, following a written declaration by the Player that he was not
contractually bound to the Claimant.
- The YYY presented an ITC issued by the XXX on 4 August 2004, on which E is
again mentioned as the Player’s last club.
Club A., X/ Player B, X & Club C, Y
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- The YYY announced to FIFA that the Player was registered on 5 August 2004
with the Respondent, with which he had a valid employment agreement until
30 June 2008.
5.
In continuation, the XXX has stated that the ITC dated 4 August 2004 previously
presented by the YYY had not been issued by the XXX and that the Player was still
as before registered in X under registration number ... … .
6.
The Claimant, for its part, announced on 24 February 2006 that the proceedings
initiated between itself and the Player with respect to the legal validity of the
contractually agreed penalty clause relating to unilateral breach of contract were
still pending. The Player was of the opinion that, under X law, the compensation
could not be more than … 409,500 for national transfers. The Claimant however
was claiming compensation in the amount of … 949,490.10. The Player had
deposited the undisputed amount of … 409,500 to be able to be transferred
nationally, which had been withdrawn by the Claimant. The final decision on the
amount of the penalty clause had not yet been made.
7.
On 31 March 2006, FIFA informed the Claimant that it could no longer deal with its
claim, given that the contractual relationship between the Player and the Claimant
had been terminated in July 2004 following a X court ruling and the Claimant had
withdrawn the undisputed portion of the penalty clause for national transfers. The
Claimant had thus consented to the national transfer and the termination of the
contractual relationship between itself and the Player. In other words, the
Claimant did not have the right to sue for compensation as a result of the Player's
transfer to Y.
8.
On 13 April 2006, the Claimant insisted on its claim.
9.
In reply to the Claimant’s complaint, the Player and the Respondent request the
rejection of it on the following grounds:
- Incompetence of FIFA to decide the present matter. The Claimant would
practice “forum shopping”. The facts of the present case have already been
discussed before the X courts and are still pending.
- Both the Player and the Claimant are “X”, which is why the X courts – not FIFA –
are competent to decide on the matter.
- The Respondent is not involved in the matter in dispute. The Claimant only filed
a claim against the Respondent, in addition to the Player, to trigger the
competence of FIFA. The Player was transferred from E to Y, which is why there
is no legal relationship between the Claimant and the Respondent.
Club A., X/ Player B, X & Club C, Y
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- In addition, the Player terminated his employment agreement with the
Claimant against payment of a deposit of … 949,490.10 on the order of a X
labour court. The Claimant has already withdrawn … 409,500 from this amount.
- With respect to the issued ITC, the Player emphasized the fact that it was issued
by the XXX. The Player cannot take a stance on this matter as the ITC
procedures are a matter exclusively between the two associations of the Player’s
former and current clubs.
10.
In its replica, the Claimant asserts that the illegal conduct of the Respondent and
particularly its “involvement” is demonstrated by the fact that the YYY requested
the issuance of the Player’s ITC on 20 July 2004, even though the XXX did not
receive the court ruling dated 16 July 2004 relating to the release of the Player
until 27 July 2004.
11.
In addition, the Claimant emphasized that the employment agreement between
the Player and E was entered into on 16 July 2004, but not presented to XXX until
27 July 2004. If the employment agreement had actually been entered into on 16
July 2004, in the opinion of the Claimant, E would not have waited 11 days to
present the employment agreement to the XXX and to proceed with the transfer
of the Player. This proves that the Player had already entered into an employment
agreement with the Respondent when he entered into the employment
agreement with E. The YYY had already filed a request with the XXX for the
issuance of the Player’s ITC on 20 July 2004. Thus, in the view of the Claimant, the
Respondent and the YYY had already demanded the transfer of the Player before
the Player was released from the contractual relationship with the Claimant.
Before his transfer to Y, the Player was merely transferred nationally on paper.
12.
Finally, the Claimant deemed that FIFA's competence to decide should not be
called into question. An enticement to violate the agreement and an irregular
transfer to Y never were the object of the proceedings before the X courts.
Moreover, as has already been claimed, the Player - not the Claimant - initiated the
proceedings in front of the X courts.
13.
Upon FIFA’s request, the XXX stated that it had been informed on 20 July 2004
about the court ruling rendered by the X labour court on 16 July 2004.
14.
The Player and the Respondent reiterated their previous statements in their
rejoinders.
II.
Considerations of the Dispute Resolution Chamber
Club A., X/ Player B, X & Club C, Y
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1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (DRC) (edition 2005). The present matter was submitted to
FIFA on 11 July 2005. As a consequence, the Chamber concluded that the said Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (DRC) are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the 2005 version of the Regulations
for the Status and Transfers of Players. In accordance with art. 24 par. 1 in
combination with art. 22 (a) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on disputes between clubs and players in
relation to the maintenance of contractual stability if there has been a request for
the issuance of an ITC and if there is a claim from an interested party in relation to
such ITC request, in particular regarding its issuance, regarding sporting sanctions
or regarding compensation for breach of contract.
3.
In this respect, the members of the Chamber, inter alia, acknowledged that the
YYY asked for the issuance of the Players’ ITC on 20 July 2004 and that the file
contains two ITC’s, a first one dated 21 July 2004 and a second one dated 4 August
2004, whereof the XXX confirmed the issuance of the first ITC but denied the
issuance of the second one dated 4 August 2004.
4.
As a consequence, as a first step, it was concluded that, in principle, the Dispute
Resolution Chamber would be the competent body to decide on a dispute, like the
matter at hand, involving a X club, a X player and a Y club related to the
maintenance of contractual stability where there has in fact been an ITC request
and a claim from an interested party in relation to such ITC request.
5.
Subsequently, the Chamber deemed it, however, of utmost importance to consider
the following chronological crucial facts which are at the basis of the specific
litigation at hand:
6.
At the end of June 2004, the Player lodged a complaint against the Claimant
before a X labour court seeking the declaration of the termination of the
contractual relationship entered into with the Claimant in August 2002 and the
permission to sign on with another X club.
Club A., X/ Player B, X & Club C, Y
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7.
On 16 July 2004, the relevant X court authorised the Player to enter into a new
employment contract with another X club against a deposit of … 949,490.10, i.e.
an amount of money representing the penalty clause contractually agreed upon
between the Player and the Claimant in case of a unilateral termination of their
contractual relationship.
8.
Equally, the Chamber took into account that, according to the written
confirmation of the XXX, an employment contract took effect between the Player
and the X club, E, as from 27 July 2004.
9.
Furthermore, the Chamber noted that the proceedings involving the Player and
the Claimant regarding the validity of the contractually agreed penalty clause
relating to unilateral breach of contract are still pending in front of the relevant X
court since, apparently, the parties concerned disagree on the amount of
compensation relating to the relevant clause.
10.
In this respect, the Chamber particularly noted that the Claimant acknowledged
having already received the undisputed amount (i.e. … 409,500) of the deposit (i.e.
… 949,490.10) made by the Player in connection with the proceedings regarding
the validity of the relevant penalty clause in front of X authorities. In this context,
the Chamber pointed out that having accepted (part of) the compensation on the
basis of the uncontested national transfer of the Player, the club acknowledged
that the player was no longer contractually bound to it.
11.
Moreover, the Chamber concurred that the Claimant had acknowledged the
competence of the X labour court as, without doubt, it got involved with the
proceedings initiated by the Player.
12.
In this context, the Chamber was eager to emphasise that the proceedings lodged
by the Player against the Claimant must also have referred to the question as to
whether a unilateral termination of their contractual relationship has occurred.
Otherwise, so the Chamber, the question about the legal validity of the
contractual penalty clause would not have arisen. In particular, the members of
the Chamber recalled that the contractual relationship between the Player and the
Claimant was officially terminated by a court ruling in July 2004. In fact, based on
the documents on file, including the confirmation of the Claimant in this respect,
the Chamber noted that the said proceedings which started in X are still ongoing.
These proceedings, however, are apparently limited to the question of which
amount of money is legally allowed as maximum of the relevant contractual
penalty clause in accordance with X law.
Club A., X/ Player B, X & Club C, Y
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13.
In view of the above, the Chamber unanimously concurred that it cannot hear the
present dispute due to the principle of “litispendency”. In fact, according to the
documents on file, the Claimant claims compensation from the Player and the
Respondent based on an allegedly occurred breach of the employment contract
concluded between the Player and the Claimant in August 2002, in other words,
based on circumstances which were already under examination of the X labour
court appealed by the Player and the consequences of which, i.e. the legitimacy of
the amount agreed upon by and between the Player and the Claimant as
compensation for a unilateral termination of their contractual relationship, are still
pending.
14.
Therefore, the Chamber unanimously decided that due to the above-mentioned
pending case in front of the X labour court, it cannot deal with the present matter.
In this respect, the Chamber deemed it necessary to repeat that the Claimant
accepted the competence of the X courts invoked by the Player by having defined
its position in front of these tribunals, which is the reason why its argument
regarding the alleged imperative competence of FIFA in the present matter due to
the fact that only the Player started the relevant proceedings in X cannot be
accepted.
15.
Besides the fact that the present matter cannot be heard due to the
aforementioned principle of “litispendency”, the Chamber deemed it also of
utmost importance to underline that the Claimant’s right to take legal action
against the Player and the Respondent is missing in the case at hand.
16.
In fact, as the contractual relationship between the Player and the Claimant was
terminated in July 2004 by a X labour court and made subject to the payment of
the contractually agreed compensation, whereof the uncontested part of the total
amount of … 949.490,10 was already withdrawn by the Claimant, the Chamber
concurred that the Claimant accepted to receive (part of) the contractual penalty
clause relating to unilateral breach of contract in connection with a national
transfer. In other words, so the Chamber, the Claimant accepted that the
termination of its contractual relationship with the Player arises from a domestic
transfer and not, as now alleged in front of FIFA, from an international transfer.
17.
In this respect, for the sake of completeness only, the Chamber deemed it also
important to underline that the practice of parties to have their legal cases heard
by several decision-making bodies with the aim to get the most favourable
judgment, known as “forum shopping”, cannot be upheld at all by the Chamber.
Club A., X/ Player B, X & Club C, Y
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In particular, the Chamber cannot support the Claimant’s possible intention to
receive monies in accordance with the contractual penalty clause for breach of
contract twice, namely the amount of money contractually agreed upon in
connection with a unilateral breach of contract on the basis of a national transfer
in front of X authorities and, additionally, an amount of money for unilateral
breach of contract, whether or not in accordance with the mentioned contractual
penalty clause, on the basis of an international transfer in front of FIFA.
18.
Taking into account all the foregoing considerations, the Chamber decided that it
is not competent to deal with the claim lodged by the Claimant due to both the
principle of “litispendency” and the fact that the Claimant’s right to take legal
action against the Player and the Respondent is missing in the case at hand.
*****
Club A., X/ Player B, X & Club C, Y
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III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, A, is not admissible.
2.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision and
has to contain all elements in accordance with point 2 of the directives issued by
the CAS, copy of which we enclose hereto. Within another 10 days following the
expiry of the time limit for the filing of the statement of appeal, the appellant
shall file with the CAS a brief stating the facts and legal arguments giving rise to
the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
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
On behalf of the
Dispute Resolution Chamber:
Jérôme Valcke
General Secretary
Encl. CAS directives
Club A., X/ Player B, X & Club C, Y
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