Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 November 2007,
in the following composition:
Slim Aloulou (Tunisia), President
Mario Gallavotti (Italy), Member
Zola Majavu (South Africa), Member
Michele Colucci (Italy), Member
Rinaldo Martorelli (Brazil), Member
on the claim presented by the
Club A,
as Claimant,
against the
Player B,
as first Respondent,
and
Club C,
as second Respondent,
regarding a dispute about the breach of an employment contract
and the inducement to breach of an employment contract.
I.
Facts of the case
1.
On 3 August 2004, the player B (hereinafter; the player), born in May 1983, and
the club A (hereinafter; club A) signed an employment contract valid until 30
June 2005, stipulating a monthly salary of XYZ 7,190 plus bonuses.
2.
By means of an annex signed by club A and the player on 2 December 2004, the
duration of the employment contract was extended until 30 June 2007, and by
means of an annex signed by club A and the player on 12 December 2005, the
duration of the employment contract was extended until 30 June 2009. Both
annexes stipulate a basic monthly salary of XYZ 1,880. Furthermore, on 2
December 2004, the player and club A also signed an agreement whereby the
player ceded the use of his personality rights to club A, in turn of which he
would be paid several amounts until 15 January 2007.
3.
On 1 February 2006, the player signed an employment contract with the club C
(hereinafter; club C).
4.
On 18 March 2006, the player was provisionally registered with club C by the
Football Association of club C.
5.
On 25 April 2006, club A filed a claim at FIFA against the player and club C for
compensation for unjustified breach of the employment contract between the
player and club A.
6.
On 1 and 30 May 2006, the player and club C provided FIFA via the Football
Association of club C with their answers on of club A’s claim, and requested that
of club A’s claim be rejected.
7.
In this respect, the player first of all pointed out that on 15 July 2004, he had
ceded the use and marketing of his personality and transfer rights to a company
(hereinafter; the Company) until 30 June 2012. In continuation, on 3 August
2004, the Company and club A concluded an agreement for the loan of the
player’s personality and transfer rights until 30 June 2005, and the player signed
with club A an employment contract valid also until 30 June 2005. The player and
the Company were of the opinion that on 30 June 2005, the loan of the player to
club A expired and the player’s transfer rights would return to the Company. In
this respect, the player presented a letter dated 4 August 2004 signed by club A,
whereby the latter confirmed that if until 30 June 2005, club A and the Company
had not concluded a new agreement for the engagement of the player, club A
will consent to the player’s transfer to a club specified by the Company.
2/16
Club A/ Player B and Club C
8.
In continuation, the player explained that regardless of this contractual situation,
he also ceded his transfer- and marketing rights to club A on 2 December 2004,
and at the same time, signed a new employment contract with club A valid until
30 June 2007. Furthermore, on 12 December 2005, this contract was mutually
extended until 30 June 2009. In this respect, the player alleges that club A had
pretended that it was acting with the Company’s permission.
9.
Finally, the player explained that later on, but still in December 2005, he decided
that he did not want to fulfil the new contract that he had concluded with club
A, but that he wanted to respect the contracts he had signed in 2004 with the
Company. Therefore, on 17 December 2005, the player and the Company signed
a new agreement over the player’s transfer- and marketing rights. Finally, on 9
January 2006, club A was informed that the contracts it had concluded with the
player on 2 December 2004 and 12 December 2005 were in breach of the initial
agreements signed between the player, club A and the Company in July 2004,
and that they were therefore null and void. In fact, the player should have
returned to the Company upon expiry of the loan agreement on 30 June 2005.
10.
Besides the above, the employment contract between club A and the player was
terminated by the player on 9 January 2006 due to outstanding salary payments.
The player, however, did not specify which exact payments were concerned.
11.
Club C basically referred to the player’s arguments. Furthermore, it stated that in
view of the situation as described above, it presumed that the player was not
contractually bound to any club on 1 February 2006, and that it could therefore
sign an employment contract with him.
12.
On 27 August and 18 September 2006, club A provided FIFA, via its Football
Association, with its position on the answer of the player and club C, and thereby
entirely contested the player’s and club C’s arguments.
13.
Club A first of all particularly rejected the allegation that the player’s salaries
were not regularly paid, but insisted that all amounts due to the player were
regularly paid. In this respect, club A submitted several documents of its financial
department, which are, however, not signed by the player. Furthermore, club A
emphasised that before the Winter break 2005/06, the player was even paid an
advance payment of XYZ 13,000.
14.
Furthermore, club A pointed out that it had initially concluded an employment
contract with the player on 3 August 2004 by using the agency services of the
Company, and that the latter was paid EUR 20,000 for its services. Such payment
was not a loan fee, but a payment for agency services. Therefore, the agreement
between club A and the Company was also not a loan agreement.
3/16
Club A/ Player B and Club C
15.
In continuation, club A concluded contracts with the player creating an
employment relationship until 30 June 2009, without having knowledge of the
alleged contractual situation between the player and the Company. Regardless
of his contracts, after the Winter break 2005/06, the player did not return to club
A on 9 January 2006, as he was obliged to, but instead, envisaged the conclusion
of an employment contract with club C.
16.
Therefore, on 25 January 2006, club A informed club C in writing and the
Football Association of club C via phone of the player’s contractual situation.
Despite that, club C finally concluded an employment contract with the player on
1 February 2006.
17.
In view of the above, club A deems that the player has breached his employment
contract during the protected period without just cause, and that club C has
induced the player to breach his employment contract with club A.
18.
Therefore, in accordance with art. 17 of the Regulations for the Status and
Transfer of Players, club A claims against the player for compensation in the
amount of EUR 300,000, for sporting sanctions to be imposed on the player (i.e. a
suspension of the player’s eligibility to play in official matches during six
months), for the joint responsibility of club C for the compensation to be paid by
the player, and for the application of sporting sanctions on club C for
inducement to breach of contract. Finally, club A claims for training
compensation to be paid by club C for the training of the player by club A, in
accordance with art. 20 of the afore-mentioned Regulations.
19.
On 5 January 2007, the player and club C provided FIFA with their final position
on the matter.
20.
Thereby, they entirely rejected club A’s position. In particular, they rejected club
A’s version that the Company was only acting as the player’s agent, but they
emphasised once again that the player’s rights were loaned to club A for one
season. In this respect, they referred to the previously submitted letter of club A
dated 4 August 2004, whereby club A had acknowledged such legal situation.
21.
Furthermore, the player maintained that club A had put him under pressure for
the signature of the employment contracts on 2 December 2004 and 12
December 2005, and that he was not aware of the content of the said contracts,
as they were written in a language he did not master.
4/16
Club A/ Player B and Club C
22.
Moreover, the player reiterated that club A had not regularly paid his salaries,
and in this respect, stated that club A had not submitted reliable evidence for its
allegation that all salaries were regularly paid. The player also rejected club A’s
argument that he had been paid an advance payment in December 2005.
However, despite FIFA’s specific request to the player on 27 November 2006, he
never specified which exact monthly salaries allegedly have remained unpaid.
23.
Finally, the player invokes that FIFA is not competent to decide on the present
matter, since neither the player nor club A are affiliated to FIFA.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) had to analyse 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 (hereinafter; the procedural
rules). The present matter was initially submitted to FIFA on 25 April 2006, as a
consequence the DRC concluded that the revised Rules Governing Procedures
(edition 2005) on matters pending before the decision making bodies of FIFA are
applicable on the matter at hand.
2.
With regard to the competence of the DRC, art. 3 par. 1 of the above-mentioned
Rules states that the DRC shall examine its jurisdiction in the light of articles 22
to 24 of the 2005 edition of the Regulations for the Status and Transfer of
Players. In accordance with art. 24 par. 1 in connection with art. 22 (b) of the
aforementioned Regulations, the DRC shall adjudicate on employment-related
disputes between a club and a player that have an international dimension.
3.
As a consequence, the DRC is the competent body to decide on the present
litigation involving two clubs and a player with different nationalities regarding
a dispute in connection with the consequences of the established breach of an
employment contract concluded between the parties.
4.
Besides that, the DRC declared that the lack of direct affiliation of the parties to
the present dispute to FIFA does not affect the competence of the DRC to decide
on the matter at stake. In this respect, the DRC emphasised on the one hand that
its competence is established on the basis of the above-mentioned provisions and
a constant practice of the DRC, and, on the other hand, underlined that the
parties to the present dispute are to be considered as indirect affiliates to FIFA
and are therefore subject to the jurisdiction of FIFA’s deciding bodies.
5/16
Club A/ Player B and Club C
5.
Subsequently, the DRC analysed which edition of the Regulations for the Status
and Transfer of Players should be applicable as to the substance of the matter. In
this respect, the DRC referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations for the Status and Transfer of Players (edition 2005) in their version
in accordance with FIFA circular nr. 995 dated 23 September 2005, and, on the
other hand, to the fact that the relevant contract at the basis of the present
dispute was signed on 1 February 2006, and the claim was lodged at FIFA on 25
April 2006. In view of the aforementioned, the DRC concluded that the 2005
edition of the FIFA Regulations for the Status and Transfers of Players
(hereinafter; the Regulations) are applicable on the case at hand as to the
substance.
6.
In continuation, and entering into the substance of the present matter, the
members of the Chamber started by acknowledging the established facts of the
case and the arguments of the parties as well as the documentation contained in
the file, and in this respect, in view of the circumstances of the present case, first
of all stated that the following five questions had to be tackled:
Has a valid employment contract existed between the player and club
A at the moment of the signature of an employment contract
between the player and club C?
II. If yes, who is responsible for the termination of the employment
contract with club A and was there a just cause for such termination?
III. In case of unjustified breach of contract by the player: Which are the
consequences thereof for the player (compensation and sporting
sanctions) and club C (joint and several liability for payment of
compensation)?
IV. In case of unjustified breach of contract by the player: Is club C to be
presumed to have induced the player to breach his contract, and if
yes, which are the consequences thereof for club C (sporting
sanctions)?
V. Is Training Compensation owed by club C to club A for the training of
the player?
I.
7.
As far as the question is concerned whether or not a valid employment contract
existed between the player and club A at the moment of the signature of an
employment contract between the player and club C, i.e. on 1 February 2006,
the DRC first of all noted that it is uncontested that the player and club A have
signed an employment contract on 3 August 2004, valid until 30 June 2005,
extended that employment contract on 2 December 2004 to 30 June 2007, and
again extended the employment contract on 12 December 2005 to 30 June
2009.
6/16
Club A/ Player B and Club C
8.
In this respect, the DRC at first underlined that the contracts between the
player and club A contain all the essentialia negotii of a labour contract, i.e.
the indication of the parties to the contract, the period of validity of the
contract, the parties’ duties, the basic remuneration due to the player in
exchange for his services, the signatures of both parties on the contract, and
the date of their conclusion.
9.
In continuation, the DRC took note of the player’s statement that club A had put
him under pressure for the signature of the employment contracts on 2
December 2004 and 12 December 2005, that club A had pretended to act with
the permission of the Company, and that he was not aware of the content of the
said contracts, as they were written in a language he did not master.
10.
In this respect, the DRC first of all underlined that, in accordance with art. 12 par.
3 of the procedural rules, which contains the principle of the burden of proof,
any party deriving a right from an alleged fact shall carry the burden of proof. As
the player has not provided any evidence to corroborate the allegation that he
was put under pressure by club A to sign the employment contracts concerned
and that club A had pretended to act with the Company’s permission, the DRC
had to reject those arguments of the player.
11.
As far as the player’s argument is concerned that he was not aware of the
content of the contracts in question, as they were written in a language he did
not master, the DRC firstly again referred to the principle of the burden of proof
and the lack of evidence for the respective position of the player. Secondly, the
DRC declared that any party signing a contract is responsible to be aware of the
contents of the contract to be signed, particularly in case a contract is written in
a language not mastered by the signatory. Signing a contract despite not
knowing its exact contents due to the language of the contract or due to any
other reason is to be considered as gross negligence, and the consequences
thereof shall not have to be borne by the other party to the relevant contract.
Consequently, the player’s argument related to the language of the employment
contracts in question was also rejected by the DRC.
12.
Furthermore, the DRC took into consideration the player’s position that the
contracts he had concluded with club A on 2 December 2004 and 12
December 2005 were in breach of the initial agreements signed between
him, club A and the Company in July 2004, and that they were therefore null
and void.
7/16
Club A/ Player B and Club C
13.
In that regard, the DRC emphasised that contracts and agreements concluded
between entities subject to the jurisdiction of FIFA on one side, and entities
not subject to the jurisdiction of FIFA on the other side, cannot be taken into
consideration by the deciding bodies of FIFA. Consequently, as the Company
is not and cannot be an entity affiliated as a member to FIFA or to an
Association affiliated to FIFA, and therefore is not subject to the jurisdiction
of FIFA, the agreements concluded between the player, club A and the
Company in July 2004 cannot be taken into consideration in the scope of the
present procedure. Therefore, these agreements cannot have an impact on
the validity of the labour contracts concluded between the player and club A.
14.
Furthermore, the DRC explained that, even if the Company was to be
considered as an affiliate to FIFA, quod non, the contents of the agreements
concluded between the player, club A and the Company could still not have
an impact on the relationship between the player and club A for the
following reason. As a matter of fact, football players and entities other than
football clubs cannot conclude employment contracts or any comparable kind
of a contract binding the player to the entity in an employment-relationshipwise manner. In this respect, the DRC emphasised in particular that the
concept of “federative rights” has been abrogated with the coming into
force of the edition 2001 of the Regulations and been replaced by the
concept of maintenance of contractual stability, such as provided by art. 13 to
18 of the Regulations. Consequently, a football player can only be bound by
an employment contract to a football club, but not to a company that is not
a football club. Therefore, such a company is also not in a position to loan a
football player to a football club.
15.
For the reasons mentioned above, the DRC declared also that the letter
issued by club A on 4 August 2004 can also not be taken into consideration by
the DRC and therefore cannot have an impact on the decision in the present
case.
16.
In continuation, the DRC noted that between 1 July 2005, the first day after the
initial employment contract between the player and club A had expired, and 9
January 2006, the date when the player sent a termination note to club A, the
player had always acted in accordance with the employment contracts concluded
with club A and never invoked the invalidity of the contractual relationship with
club A due to the disrespect of agreements made with the Company. Thereby,
the employment relationship between the player was approved by the player to
be valid also by tacit acting.
8/16
Club A/ Player B and Club C
17.
Finally, and regardless of the above, the DRC also noted that the Company
has never tried to lodge a complaint before FIFA against club A requesting at
least that the employment contracts concluded between the player and club
A with a validity beyond 30 June 2005 shall be declared as invalid due to the
agreements between the player, club A and the Company. In fact, the
Company is even not a party to the present case and has never tried to
become a party hereto by an application for intervention.
18.
In view of the above, the DRC decided that the employment contracts signed
between the player and club A, which had a duration until 30 June 2009 were
concluded validly. Therefore, on 1 February 2006, i.e. at the moment of
conclusion of an employment contract between the player and club C, the
player was validly bound by an employment contract to club A.
19.
In a next step, the DRC had to assess who is responsible for the termination of
the employment contract between the player and club A and whether or not
there was a just cause for such termination.
20.
In this respect, the DRC first of all took into consideration that the player
invoked that he had terminated the employment contract with club A on 9
January 2006 due to outstanding salary payments.
21.
The DRC, however, also noted that the player never specified the exact
payments allegedly outstanding, despite that he was asked to do so by FIFA
on 27 November 2006.
22.
Furthermore, the DRC took note of the fact that the player, despite his
allegation of unpaid salaries, has never made a request before FIFA against
club A for the payment of outstanding amounts. In this respect, the DRC
estimated that the player’s behaviour is considerably contradictory, as he
could have requested the payment of amounts to club A if they were
outstanding. Therefore the player’s respective position is, to a certain extent
in lack of credibility.
23.
In view of the above, the DRC decided that the player’s position that he had
a just cause to terminate the employment contract with club A on 9 January
2006 due to outstanding payments could not be followed and had therefore
to be rejected.
9/16
Club A/ Player B and Club C
24.
Consequently, the DRC declared that the player had no just cause to
terminate the employment contract with club A on 9 January 2006.
Therefore, the employment contract between the player and club A was valid
until 30 June 2009, and was therefore also valid on 1 February 2006, the date
when the player signed a second employment contract with another club, i.e.
club C. As club A never authorised the player to sign an employment contract
with another club during the validity of its own employment contract with
the player, the latter has breached the employment contract with club A
without just cause.
25.
In continuation, the DRC had to assess the consequences of the unjustified
breach of contract for the player (compensation and sporting sanctions) and club
C (joint and several liability for payment of compensation).
26.
As far as the compensation payable by the player to club A for unjustified breach
of contract is concerned, the DRC firstly recalled that according to art. 17 par. 1
of the Regulations, contractual breaches, whether inside or outside the
protected period, give rise to payment of compensation. According to the
quoted provision, the compensation amount shall be calculated, in particular,
with due consideration for the law of the country concerned, the specificity of
sport and further objective criteria, including in particular the remuneration and
other benefits due to the player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five
years as well as the fees and expenses paid or incurred by the former club
(amortised over the term of the contract) and whether the contractual breach
falls within a protected period. The list of objective criteria is not exhaustive.
27.
The DRC furthermore stated that it falls under its responsibility to estimate the
prejudice suffered by club A in the case at hand, not only in accordance with the
above-stated criteria contained in article 17 par. 1 of the Regulations and in due
consideration of all specific circumstances of the present matter, but also with
their specific knowledge of the world of football, as well as with the experience
the DRC itself has gained throughout the years.
28.
For the calculation of the amount of compensation due by the player, the DRC
firstly turned its attention to the remaining remuneration and other benefits due
to the player under the existing contract, which criterion was considered by the
DRC to be essential.
29.
In view thereof, the DRC first of all had to establish the remaining duration of
the employment contract between the player and club A, in order to ascertain
the remaining value of the employment contract in question. The contractual
employment relationship between the player and club A commenced on 3
August 2004 and had, after finally having been extended on 12 December 2005,
a duration until 30 June 2009.
10/16
Club A/ Player B and Club C
30.
The player has unilaterally terminated the employment contract with club A on 9
January 2006, as he notified club A on that date that he terminates the
employment contract, and since he was absent from club A as of that date
without authorisation from the latter. Therefore, the said date has also to be
considered as the date of the anticipated termination of the employment
contract between the player and club A.
31.
In order to establish the remaining value of the employment contract between
the player and club A, the DRC recalled that the employment contract in
question stipulated a monthly salary of XYZ 1,880. Consequently, the
remaining value of the employment contract from January 2006 to June
2009, i.e. 42 months, is XYZ 78’960.
32.
Furthermore, the DRC recalled that in order to assess the remaining value of
an employment contract, it could take into account only contractually agreed
salaries, sign on fees and other bonuses which are to be considered as
remuneration payments for labour services to be rendered to the club.
However, the payments stipulated in the agreement concluded on 2
December 2004 between club A and the player, by means of which the player
ceded the use of his personality rights to club A, could not be taken into
consideration within the scope of the assessment of the compensation
payable by the player for breach of contract, as the said payments cannot be
considered as payments of remuneration for the player’s labour services
rendered to club A.
33.
In addition, the DRC took into consideration that according to the information at
its disposal, it was not established that club A had paid any compensation for the
transfer of the player to another club in order to obtain the right to sign an
employment contract with the player. Therefore, such an element could not be
taken into consideration within the assessment of the compensation for breach
of an employment contract.
34.
In this respect, the DRC emphasised in particular that the amount paid by club A
to the Company in order to obtain the services of the player cannot be
considered as a payment that would fall under the above-mentioned category of
payments. Furthermore, the DRC underlined that, even in case the said payment
would have to be taken into consideration in order to assess the amount of
payable compensation, quod non, club A could not validly invoke a right to
reimbursement of the relevant amount paid to the Company, as the player
remained at club A for a period longer than his initial contract of one year. The
amount paid by club A to the Company would therefore in any case have to be
deemed as amortised over the term of the initial one year contract.
11/16
Club A/ Player B and Club C
35.
Finally, the DRC took into consideration that the player had breached his
employment contract with club A not only during the protected period (cf.
below par. 39. and 40.), but, in fact, just a few days after he had signed a new
employment contract with club A. Those facts were considered by the DRC as
aggravating circumstances for the evaluation of the compensation for breach of
contract.
36.
In view of the above, the DRC concluded that the amount of XYZ 160,000 as
compensation for breach of contract within the protected period is to be
considered as an appropriate and reasonable amount of compensation payable
by the player to club A.
37.
In continuation, the DRC focused on the further consequences of the breach of
contract in question, and in this respect, first of all decided that, in accordance
with art. 17 par. 2 of the Regulations, the new club of the player, i.e. club C,
must be jointly and severally responsible for the payment of the abovementioned amount of compensation. In this respect, the DRC was eager to point
out that the joint liability of the player’s new club is independent from the
question as to whether the new club has committed an inducement to
contractual breach. This conclusion is in line with the well-established
jurisprudence of the DRC that was repeatedly confirmed by the CAS.
Notwithstanding the aforementioned, the DRC recalled that according to art. 17
par. 4 of the Regulations, it shall be presumed, unless established to the
contrary, that any club signing a Professional who has terminated his contract
without just cause has induced that Professional to commit a breach.
38.
The DRC then took into consideration the question of sporting sanctions against
the player in accordance with art. 17 par. 3 of the Regulations. The cited
provision stipulates that, in addition to the obligation to pay compensation,
sporting sanctions shall be imposed on any player found to be in breach of
contract during the protected period.
39.
The protected period comprises a period of three entire seasons or three years,
whichever comes first, following the entry into force of an employment contract,
if such contract was concluded prior to the 28th birthday of the professional
player, or to a period of two entire seasons or two years, whichever comes first,
following the entry into force of an employment contract, if such contract was
concluded after the 28th birthday of the professional player (cf. point 7 of the
definitions of the Regulations).
40.
In the present case, the relevant employment contract was valid as of 12
December 2005, and the unjustified breach of contract by the player occurred on
9 January 2006, i.e. less than one month later, consequently, regardless of the
age of the player, during the protected period. The DRC had thus the power to
impose a sporting sanction on the player for breach of contract, as the
unjustified breach occurred within the protected period.
12/16
Club A/ Player B and Club C
41.
Therefore, the DRC decided that the player had to be sanctioned with a
restriction of four months on his eligibility to participate in any official football
match. This sanction shall take effect from the start of the next season of the
player’s new club following the notification of the present decision.
42.
Finally, the DRC had to analyse whether, in view of art. 17 par. 4 of the
Regulations, the player’s new club C is to be presumed to have induced the
player to terminate his contract with club A without just cause during the
protected period, and therefore shall be banned from registering any new
players, either nationally or internationally, for two registration periods.
43.
In this respect, the DRC noted that club C was informed in writing on 25 January
2006, i.e. before it signed a contract with the player on 1 February 2006, by club
A that the player was still under contract with club A. In this respect, it was
furthermore noted by the DRC that club A has uncontestedly also informed the
Football Association to which club C is affiliated, of that fact on 25 January 2006
via phone. In view of these facts, club C could not anymore in good faith rely on
its presumption that the player was not under contract with club A, but on the
contrary, must have been aware that the player was bound by a valid
employment contract to club A.
44.
In view of this, the DRC declared that club C, after having been informed by club
A on 25 January 2006 of the validly existing employment contract between the
player and club A, still would have had the possibility to refrain from signing a
contract with the player. In turn, the player could have returned to club A and
assumed duty with his club. Such course of action would have resulted in an
unauthorised absence of the player from club A of 16 days, incident which could
possibly have been solved internally between the player and club A and which
would supposedly not have caused the anticipated termination of the
employment contract between the player and club A. In other words, the
anticipated termination of the employment contract between the player and
club A could still have been avoided between 25 January and 1 February 2006.
45.
However, despite having been aware of the fact that the player was validly
under contract with club A, club C decided to conclude an employment contract
with the player on 1 February 2006. By means of such behaviour, club C has
caused that the rupture of the employment contract between the player and
club A became irrevocable.
13/16
Club A/ Player B and Club C
46.
Furthermore, the DRC estimated that the fact that more than 20 days lie
between the dates when the player sent a termination notice to club A and
when he signed a new employment contract with club C could not set aside the
presumption of the inducement to breach of contract by club C. As previously
outlined, it is established that club C was aware of the fact that the player was
validly contractually bound to club A at the moment of the conclusion of the
employment contract with club C. Furthermore, accepting the fact that more
than 20 days lie between the dates of termination of the former and the
conclusion of a new employment contract as a ground setting aside the
presumption contained in art. 17 par. 4 of the Regulations would provide an easy
way for every club to escape form being sanctioned for inducement to breach of
contract simply by instructing the player accordingly. However, in the present
case, it has to be recalled that club C was clearly informed about the valid
employment relationship between the player and club A when it signed an
employment contract with club C, and therefore has induced the player to
irrevocably breach the contract with club A.
47.
In view of the above, the DRC came to the conclusion that club C has clearly
induced the player to breach his employment contract with club A, and that the
respective presumption contained in art. 17 par. 4 of the Regulations could not
be set aside. In this regard, the DRC recalled in particular that the position of the
player and club C, according to which the agreements between the player and
club A were not valid beyond 30 June 2005 due to the agreements concluded
between the player, club A and the Company, had been rejected and could
therefore not alter this finding of the DRC.
48.
In view of the above, the DRC decided that in accordance with art. 17 par. 4 of
the Regulations, club C shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
49.
Finally, the DRC turned to club A’s claim for training compensation against club C
for the training of the player. In this respect, the DRC first of all noted that the
player, born on 25 May 1983, joined club A on 3 August 2004, thus at the age of
21. In view thereof, the DRC made reference to Annex 4 art. 1 par. 1 of the
Regulations, according to which training compensation shall be payable, as a
general rule, for training incurred up to the age of 21. As the player was already
at the age of 21 when he joined club A, the DRC decided that no training
compensation is due by club C for the period of time the player spent with club
A.
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Club A/ Player B and Club C
50.
In conclusion, the DRC decided that the player has to pay XYZ 160,000 to club A
as compensation for unjustified breach of an employment contract during the
protected period, in application of art. 17 par. 1 of the Regulations. In this
respect, the DRC also decided that club C is jointly and severally responsible for
the payment of the above-mentioned amount of compensation to club A (art. 17
par. 2 of the Regulations).
51.
Furthermore, the DRC decided that the player shall be sanctioned with a
restriction of four months on his eligibility to participate in any official football
match, taking effect from the start of the next season of the player’s new club
following the notification of the present decision (art. 17 par. 3 of the
Regulations). And finally, the DRC decided that club C shall be banned from
registering any new players, either nationally or internationally, for the two next
entire and consecutive registration periods following the notification of the
present decision (art. 17 par. 4 of the Regulations).
52.
Any further claim of club A was rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of club A is partially accepted.
2.
The player B has to pay the amount of XYZ 160,000 to club A within 30 days of
notification of the present decision.
3.
The club C is jointly and severally liable for the payment of the aforementioned
compensation.
4.
The club A is directed to inform the player B and the club C directly and
immediately of the account number to which the remittance is to be made and
to notify the DRC of every payment received.
5.
If this amount is not paid within the aforementioned time limit, a 5% interest
rate per annum as of the expiry of the said time limit will apply and the matter
will be submitted to the FIFA Disciplinary Committee for its consideration and
decision.
6.
A restriction of four months on his eligibility to play in official matches is
imposed on the player B. This sanction shall take effect as of the start of the next
season of the player’s new club following the notification of the present
decision.
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7.
The club C shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods
following the notification of the present decision.
8.
Any further request filed by club A is rejected.
9.
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:
Château de Béthusy
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00, Fax: +41 21 613 50 01
[email protected], www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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