Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Carlos Soto (Chile), member
Ivan Gazidis (England), member
Damir Vrbanovic (Croatia), member
on the claim presented by the club
P,
as Claimant
against the player
S,
as Respondent
and the club
F,
as Intervening Party
regarding a contractual dispute
between the parties
I.
Facts of the case
1.
On 14 May 2007, the club, P (hereinafter: the Claimant), lodged a claim in front of
FIFA against the player, S (hereinafter: the Respondent), and requested financial
compensation from the latter for having allegedly breached the contractual
relationship with the club without just cause.
2.
In this respect, the Claimant alleged that, on 14 June 2005, it had signed with the
Respondent an employment contract valid for one football season, i.e. until 30
June 2006, without submitting the said contract. The Claimant went on to explain
that, on the same date, the parties had allegedly agreed to sign an annexe to the
contract (hereinafter: the annexe), valid for the seasons 2005/2006 and 2006/2007,
which contained additional financial terms.
3.
The annexe stipulated that the Respondent would receive the total amount of
EUR 65,000 as follows:
Season 2005/2006
EUR 5,000 payable by 16 June 2005
EUR 25,000 payable in ten equal monthly instalments starting from 01/08/2005 to
20/05/2006
Season 2006/2007
EUR 5,000 payable by 15 June 2006
EUR 30,000 payable in ten equal monthly instalments starting from 01/08/2006 to
30/05/2007.
In addition, the annexe stated that the Respondent would receive bonuses
according to the success of the team as well as two return flight tickets for the
route L – I – L. Furthermore, art. 4 first sentence of the annexe stipulated that the
club should provide an appropriate accommodation for the player and pay for the
rent, whereas art. 4 second sentence of the annexe stipulated that “the rental of
the lodging shall be paid by the competitor [the player] (…)”.
4.
The Claimant further added that, upon expiry of the first employment contract,
the parties to the dispute concluded a second employment contract (hereinafter:
the additional contract) on 11 July 2006 valid for one sporting season, i.e. until 30
June 2007. The said additional contract, remitted to FIFA by the Claimant,
provided for a monthly salary of 500.
5.
In continuation, the Claimant alleged that, on 2 December 2006, the Respondent
had left the town and had not come back ever since, nor had he responded to the
numerous calls the Claimant’s officials had allegedly made on his mobile phone.
6.
Consequently, the Claimant claimed from the Respondent the amount of EUR
15,000 in accordance with the annexe as compensation for breach of contract, i.e.
five instalments of EUR 3,000 each allegedly due to the player for the period from
1 January until 30 June 2007, as well as a further amount of 3,000, plus interests,
pertaining to the additional contract, i.e. six monthly salaries of 500 allegedly due
to the Respondent for the period from 1 January until 30 June 2007. In addition,
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the club also asked for sporting sanctions to be imposed on the Respondent for his
alleged breach of contract.
7.
In his response submitted on 20 October 2008, the Respondent claimed that he
had been forced to leave the Claimant, since members of the latter as well as fans
had allegedly shown racist attitudes towards him, which he could no longer
tolerate. He further added that he was never paid on time and when he had
complained about this to the club, he had allegedly been told that he could leave
the Claimant, if he did not like it. Thus, the player alleged having put an end to
the parties’ contractual relationship in December 2006.
8.
The Respondent further explained that, in August 2007, the B Football Federation
had apparently sent his International Transfer Certificate (ITC) to the H Football
Federation in order for him to be registered for a new club. In this regard, the
Respondent stressed, without submitting any copy of it, that his ITC allegedly
stated that he had duly fulfilled his obligations towards his former club and the B
Football Federation and that, consequently, he was free to register for another
national association affiliated to FIFA.
9.
Furthermore, the Respondent asserted that, contrarily to the Claimant’s
allegation, he had never signed the annexe and argued that his signatures
contained on the annexe and on the additional contract provided by the Claimant
in its claim did not match. In short, he explained, without submitting any
documentary evidence, having only signed an employment contract on 14 June
2005 valid until 30 June 2006 and, upon expiry of his first contract, another
contract valid from 11 July 2006 until 30 June 2007. Thus, the player held that he
had signed two successive employment contracts valid for one sporting season
each. Furthermore, the player added that the annexe had never been registered at
the B Football Federation and, therefore, that the said document was not valid.
10.
Consequently, the Respondent rejected the claim lodged by the Claimant in its
entirety.
11.
In its second submission dated 24 November 2008, the Claimant asserted that, on
29 June 2005, it had signed with the Respondent an employment contract
(hereinafter: the contract) valid for two football seasons, i.e. from 1 August 2005
until 30 June 2007.
12.
According to the contract, the Respondent was apparently entitled to receive a
monthly salary of 400.
13.
The Claimant went on to explain that, prior to the signing of the contract, on 14
June 2005, the parties had allegedly agreed to sign the annexe. Subsequently, the
Claimant argued that at the end of the first season, on 11 July 2006, and in order
to renew the Respondent’s annual work permit until the end of the season
2006/2007, it had signed another employment contract with the Respondent, i.e.
the additional contract, which would allegedly have eased the issuance of the
relevant work permit. The Claimant went on to explain that this additional
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contract had not officially been registered as a new labour contract with the B
Football Federation but only served as an official document guaranteeing that the
Respondent would work in B from 11 July 2006 until 30 June 2007, i.e. until the
end of the validity of the contract.
14.
In continuation, the Claimant rejected the Respondent’s allegation that he had
never signed the annexe, since this would mean that the Respondent would only
have received the monthly salary stipulated in the contract and the additional
contract, i.e. 400/500 allegedly equalling to approximately EUR 200/250, which
would constitute an amount simply too low for a player of his category.
Furthermore, the Claimant also affirmed that it had always paid the Respondent
on time and submitted in this respect a copy of the Claimant’s cashier’s book,
apparently signed by the Respondent, according to which the Respondent would
have been paid regularly in cash until the date of his departure, the last payment
in the amount of EUR 1,500 plus 500 having been apparently made on 1 December
2006.
15.
In addition, the Claimant stated that it had been at no point aware that the
Respondent had been the victim of racist behaviour nor that he was unsatisfied
with the Claimant. On the contrary, and to corroborate the foregoing, the
Claimant submitted a press article dated 28 November 2006, in which the
Respondent stated, inter alia, that he was satisfied with his stay at the Claimant.
Furthermore, the Claimant claimed that it had never been notified by the
Respondent that he intended to terminate his contract and that it had allegedly
realised, after the Christmas break 2006 only, that the Respondent had not
reintegrated the team. Subsequently, the Claimant allegedly heard through the
media, inter alia, via two press articles dated 24 and 26 January 2007, that the
Respondent had participated in some trials for other clubs without having
received its expressed authorisation.
16.
Consequently, the Claimant held that, after realising that the Respondent would
certainly not come back, it had no other choice but to initiate proceedings in
order to obtain compensation in consequence of the Respondent’s alleged breach
of contract. After having allegedly informed the B Football Federation of the
Respondent’s alleged illegitimate absence, the Claimant and the B Football
Federation had tried, without submitting any evidence to FIFA, to locate the
Respondent by sending several letters to the O Football Federation and to the
Respondent’s agent, apparently without success.
17.
The Claimant went on to explain that thereafter, in August 2007, the B Football
Federation had decided to issue the ITC of the Respondent in favour of the H
Football Federation since the contract had already expired on 30 June 2007 and
since the Claimant had already lodged a claim in front of FIFA on 14 May 2007
against the Respondent and was awaiting further instructions in this respect.
18.
Finally, and on account of the above, the Claimant adhered to its position but
reformulated its financial pretensions and claimed from the Respondent the
payment of 3,000, i.e. allegedly equalling to approximately EUR 1,535, plus
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interest, corresponding to the Respondent’s salary under the additional contract
for the period from 1 January 2007 until 30 June 2007, i.e. six monthly salaries of
500. Furthermore, the Claimant asked for the payment of an amount of EUR
18,000 corresponding to “twelve outstanding tranches instalments” of EUR 1,500
each payable from 15 December 2006 until 30 June 2007 deriving from the annexe
as well as an additional amount of EUR 2,030 corresponding to the rental cost that
had allegedly to be paid to the Respondent from 1 December 2006 until the end
of his contract with the club.
19.
In his final comments submitted on 9 December 2008, the Respondent alleged
that, since the Claimant had only decided to take action against him in May 2007,
it proved that it had consented to his departure and therefore it was “more than
obvious that the club knew that I would go because of the racist and financial
problems I was facing and they had agreed on this solution”. Furthermore, the
Respondent sought to argue that he could not have signed the cashier’s book the
Claimant had submitted, since he always used his full name to sign, whereas the
signatures on the relevant book resemble something like ‘S’.
20.
Moreover, the Respondent argued that he could not have signed the annexe
before signing the contract itself and considered that there was no need for an
additional contract to be signed in order for him to obtain his work permit since
no residence or work permit was needed for EU citizens in an EU country. In
addition, the Respondent asserted that there was no reason for the Claimant to
ask for financial compensation since they had mutually agreed to terminate their
contractual relation.
21.
Finally, the Respondent reiterated that the allegations and the claim for
compensation made by the Claimant should be entirely rejected.
22.
On 15 May 2009, the Claimant submitted the original contracts and the original
annex as well as the original cashier’s book.
23.
The Respondent also submitted a copy of his new employment contract which he
had signed on 24 July 2007 with the H club, F (hereinafter: the Intervening Party),
valid as from 24 July 2007 until 30 June 2009.
24.
According to art. 3 of the said employment contract, the monthly salary of the
Respondent amounted to EUR 735. The Respondent was also entitled to receive a
Christmas bonus, equal to one monthly salary, as well as an Easter and a vacation
bonus, equal to the half of a monthly salary each. Art. 5 of the contract provided
for the payment of the monthly rent in an amount of EUR 300 and the payment of
variable remunerations. Furthermore, art. 6 lit. B) of the contract stipulates that
the Respondent would receive the total amount of EUR 98,700 payable in 19
instalments between 30 August 2007 and 30 March 2009.
25.
On 29 October 2009, upon request of FIFA, the Intervening Party asserted that it
had no connection with the pending dispute between the Respondent and the
Claimant and that it had never been informed of any such dispute.
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26.
In this respect, the Intervening Party confirmed that the contract it had concluded
with the Respondent for a period of two years expired on 30 June 2009.
Furthermore, the Intervening Party held that the Respondent had been suggested
by his agent in July-August 2007, and that the agent of the Respondent allegedly
maintained that the latter was not bound by any contractual relationship. The
Intervening Party further explained that, after the signature of the relevant
contract, the relevant ITC had been duly issued by the B Football Federation in
favour of the H Football Federation. Therefore, according to the Intervening Party,
the fact that the Claimant did not object to the issuance of the relevant ITC proves
that the Respondent was not bound by any contract and that the Intervening
Party could not have been aware of any dispute between the Claimant and the
Respondent.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008). The present matter was submitted
to FIFA on 14 May 2007, thus before the aforementioned Rules entered into force
on 1 July 2008. Therefore, the Chamber 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) (hereinafter: Procedural Rules; edition 2005) and
concluded that the 2005 edition of the Procedural Rules is applicable to the matter
at hand.
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 2008), 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 B club, a O player and a H club.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2008) and,
on the other hand, to the fact that the present claim was lodged on 14 May 2007
and that the relevant employment contracts and annexe were signed on 29 and 14
June 2005 as well as 11 July 2006, respectively. The Dispute Resolution Chamber
concluded that the 2005 version of the Regulations for the Status and Transfer of
Players (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter.
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5.
In doing so, the Chamber firstly acknowledged that the Claimant asserted that, on
29 June 2005, it had signed with the Respondent the contract valid for two
football seasons, i.e. from 1 August 2005 until 30 June 2007 and that, prior to the
signing of the contract, on 14 June 2005, the parties had allegedly agreed to sign
the annexe. Subsequently, the Claimant argued that at the end of the first season,
on 11 July 2006, it had signed with the Respondent the additional contract, valid
as from 11 July 2006 until 30 June 2007, with the apparent unique purpose to ease
the issuance of the Respondent’s work permit.
6.
In this context, the Chamber acknowledged that the Respondent asserted that he
had never signed the annexe and argued that his signatures contained on the
annexe and on the additional contract provided by the Claimant in its claim
differed. In other words, the player held that he had signed two successive
employment contracts, on 14 June 2005 and 11 July 2006, valid for one sporting
season each.
7.
The Dispute Resolution Chamber deemed it appropriate to reassert that, as a
general rule, it is not competent to decide upon matters of criminal law, such as
allegedly falsified and forged signature or document, but that such matters fall
into the jurisdiction of the competent national criminal authority.
8.
In continuation, the Chamber stated that all documentation remitted shall be
considered with free discretion (cf. art. 12 par. 6 of the Procedural Rules) and
therefore focused its attention on the contract, the annexe and the additional
contract containing the Respondent’s signature. In this context, the Chamber
emphasized and recalled that it had at its disposal the original labour agreements
- and not only mere copies sent via telefax.
9.
After a thorough analysis of the aforementioned documents, the members of the
Dispute Resolution Chamber noted that the Respondent’s signature appearing in
the contract was of an extreme complexity and of a significant length containing
the names and the surname of the latter, i.e. four names. In this regard, the
Chamber was eager to emphasize that the Respondent confirmed, on 9 December
2008, that his usual signature contained his full name. The Chamber went on
examining the Respondent’s signature on the annexe and concluded that the
Respondent’s signature was similar in the contract and in the annexe.
10.
With regard to the additional contract signed on 11 July 2006 by the Claimant and
the Respondent, the Chamber considered that the Respondent’s signature in the
additional contract appeared to differ from the ones contained in the two other
labour agreements. For the sake of completeness and notwithstanding the
foregoing, the Chamber recalled that, according to the Claimant, the said
additional contract had been signed only to ease the renewal of the Respondent’s
annual work permit until the end of the season 2006/2007 and had not been
registered at the B Football Federation. In this regard, the Chamber enlightened
the fact that the contract had a period of validity of two years, whereas the
additional contract was valid only from 11 July 2006 until 30 June 2007, i.e. the
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second year of validity of the contract. Moreover, the members of the Chamber
observed that the substance of both contracts were nearly entirely identical with
the unique slight difference that the additional contract provided for a monthly
remuneration of 500 instead of a monthly salary of 400 stipulated in the contract.
11.
On account of the above, and bearing in mind that the additional contract
contained a signature different from the signature of the Respondent contained
in the other contractual documents, the Dispute Resolution Chamber considered
that it had no reason to depart from the Claimant’s allegations and stated that
the additional contract had been effectively concluded to ease the issuance of the
Respondent’s work permit only and that the parties did not intend to make use of
the additional contract to govern their contractual relationship.
12.
Thus, the Chamber concluded that, since the signatures on the contract and the
annexe seem to be alike and since the two documents covered all the essentiali
negotii of a labour relationship – taking into consideration that the annexe
covered the majority of the financial aspects between the parties to the contract,
such as the most important part of the Respondent’s remuneration – and provided
for the same period of validity, the contract and the annexe had been validly
concluded and were meant to govern the contractual relationship between the
Claimant and the Respondent valid from 1 August 2005 until 30 June 2007.
13.
Having established that the labour relationship between the Claimant and the
Respondent was validly governed by the contract and the annexe exclusively, the
Chamber turned its attention to the Respondent’s allegations regarding the
termination of the labour relationship.
14.
In this respect, the Chamber took note that the Respondent admitted having left
the Claimant in December 2006. To justify his departure, the Chamber remarked
that the Respondent put forward several arguments, by means of which he
alleged that he had been forced to leave the Claimant since some of its members
as well as some of the fans had allegedly shown racist attitudes towards him,
which he could no longer tolerate. He also added that he had never been paid on
time and when he had complained about this to the Claimant, he had allegedly
been told that he could leave, if he wished to do so. Furthermore, the Chamber
noted that the Respondent seemed to maintain that the Claimant was, on the one
hand, aware of his probable departure due to the foregoing elements and, on the
other hand, that the Claimant consented to the early termination of the contracts.
15.
To that regard, the members of the Chamber observed that the Claimant
vehemently contested the fact that the Claimant could have consented to the
Respondent’s departure in December 2006 throughout the whole procedure, and
that the Respondent did not submit any documentary evidence in support of these
allegations, such as correspondence addressed to the Claimant, in which he
enlightened its allegedly wrongful behaviour and warned it of possible
consequences thereof, or a written notification of early termination of the
contract. On the contrary, the members of the Chamber highlighted the fact that
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the Claimant remitted to FIFA a press article dated 28 November 2006, in which
the Respondent expressed his satisfaction to play for the Claimant.
16.
Furthermore, the Chamber emphasized that the Respondent had neither
contacted FIFA prior to the beginning of the present dispute nor had he lodged a
counterclaim against the Claimant, once the present dispute had been initiated, in
order to request the payment of the allegedly outstanding salaries.
17.
In this context, the members of the Chamber deemed it appropriate to recall the
general principle of burden of proof stipulated in art. 12 par. 3 of the Procedural
Rules, according to which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof, and pointed out that the Respondent had not
provided FIFA with any substantial documentary evidence establishing that he was
indeed coerced to leave the Claimant.
18.
Therefore, and taking into account, inter alia, that the Respondent avowed having
left the club in December 2006 and that he could not prove that the Claimant
agreed to terminate their contractual relationship prematurely or that he had a
just cause to terminate the contracts, the Chamber had no other alternative but to
conclude that, by not returning to the Claimant and by not providing any valid
reason justifying his behaviour, the Respondent had breached the contract and
the annexe concluded with the Claimant without just cause in December 2006.
19.
In this respect, the members of the Chamber referred to item 7. of the
“Definitions” section of the Regulations, which stipulates, inter alia, that the
protected period shall last “for three entire seasons or three years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded prior to the 28th birthday of the professional”. In this respect, the
Chamber took note that the breach of contract occurred in December 2006, i.e.
when the Respondent did not return to the Claimant at the end of the Christmas
holidays. Therefore, the Chamber concluded that the breach had occurred one
year and approximately 5 months following the entry into force of the contracts,
hence, in any case, within the protected period.
20.
Having stated the above, the Chamber turned its attention to the question of the
consequences of such breach of contract during the protected period committed
by the Respondent.
21.
In doing so, the Dispute Resolution Chamber first of all established that, in
accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to pay
compensation to the Claimant.
22.
Prior to proceeding to the calculation of the amount of compensation, the
Chamber put emphasis on the primacy of the principle of the maintenance of
contractual stability, which represents the backbone of the agreement between
FIFA/UEFA and the European Commission signed in March 2001. This agreement
and its pillars represent the core of the editions 2001 and 2005 as well as of the
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2008 and 2009 version of the Regulations, which all stakeholders – including
player and club representatives – agreed upon in 2001.
23.
Above all, the Chamber was eager to point out that the measures provided for by
the Regulations concerning, in particular, compensation for breach of contract
without just cause, serve as a deterrent discouraging the early termination of
employment contracts by either contractual party and that a lack of a firm
response by the competent deciding authorities would represent an inappropriate
example towards all the football stakeholders.
24.
In this respect, awarding compensation in favour of the damaged party (either the
player or the club, as the case may be) has proven to be an efficient mean and has
always found a widespread acceptance since it guarantees that the fundamental
principle of the respect of the contracts is duly taken care of.
25.
Above all, it was emphasised that the criteria contained in article 17 of the
Regulations are applied with the principle of reciprocity for clubs and players,
meaning that both clubs and professionals who are seen to have committed a
breach of contract without just cause will in all cases be subject to pay
compensation and, under specific circumstances, also subject to the imposition of
sporting sanctions.
26.
Having stated the above, the Chamber focussed 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 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 the protected period. The Dispute Resolution Chamber recalled
that the list of objective criteria is not exhaustive and that the broad scope of
criteria indicated tends to ensure that a just and fair amount of compensation is
awarded to the prejudiced party.
27.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the relevant employment contract between the Respondent
and the Claimant contains a provision by which the parties had beforehand
agreed upon an amount of compensation for breach of contract. Upon careful
examination of the contract, the members of the Chamber assured themselves
that this was not the case in the matter at stake.
28.
Notwithstanding the above, the members of the Chamber took note that the
Claimant was claiming the payment of 3,000, plus interest, corresponding to the
Respondent’s salary under the additional contract for the period from 1 January
10
2007 until 30 June 2007, i.e. six monthly salaries of 500, the payment of EUR
18,000 corresponding to ““twelve outstanding tranches instalments” of EUR 1,500
each payable from 15 December 2006 until 30 June 2007 deriving from the annexe
as well as an additional amount of EUR 2,030 corresponding to the rental cost that
had to be paid to the Respondent from 1 December 2006 until the end of his
contract with the club.
29.
In other words, the Chamber underlined that the Claimant was requesting the
payment of the residual value of the additional contract and the annexe, i.e. the
remuneration and other benefits due to the Respondent under the contracts
signed by and between the Claimant and the Respondent. As a consequence, the
Chamber concluded that, although the compensation is, as a general rule,
calculated taking into consideration, inter alia, the criterion stipulated in art. 17 of
the Regulations, it had to assess, in casu, the compensation due in consequence of
the breach of contract committed by the Respondent taking into account the said
residual value of the pertinent contracts only. On a side note, the members of the
Dispute Resolution Chamber recalled that, in accordance with general principles of
procedure as well as its well-established jurisprudence, it could, in any case, not
render any decisions ultra or extra petita.
30.
In this regard, the Dispute Resolution Chamber reiterated that the labour
relationship between the Claimant and the Respondent was governed by the
contract and the annexe exclusively and, consequently, that the pertinent residual
value had to be calculated upon basis of these two agreements. Thus, the
Chamber established that, on the one hand, the contract, signed in June 2005, had
been set to expire in June 2007 and provided for a monthly salary of 400, and
that, on the other hand, the annexe provided for the payment of a monthly
instalment of EUR 3,000 payable until 30 May 2007.
31.
Therefore, and taking into consideration that the breach of contract and annexe
committed by the Respondent occurred in December 2006, the Chamber
considered that the residual value of the contract amounted to 2,800 and the
residual value of the annexe to EUR 18,000.
32.
Moreover, the Chamber acknowledged that the Claimant requested the payment
of an amount of EUR 2,030 related to the rental costs that had allegedly to be
paid to the Respondent.
33.
In this respect, the Chamber observed that the annexe provided for a provision,
which stipulated that the club should provide an appropriate accommodation for
the player and pay for the rent and also that “the rental of the lodging shall be
paid by the competitor [the player] (…)”. In view of this unclear and imprecise
provision, the Dispute Resolution Chamber considered that it was not in a position
to determine undoubtedly that the Claimant had the contractual obligation to
pay for the Respondent’s rent during the course of the contract. Consequently, the
Chamber decided that the amount of EUR 2,030 claimed by the Claimant could
not be taken into consideration in the calculation of the compensation owed to
the latter.
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34.
In sum, the Chamber concluded that the compensation for breach of contract
without just cause to be paid by the Respondent to the Claimant amounts to 2,800
plus EUR 18,000.
35.
In continuation, the Chamber focused on the further consequences of the breach
of contract in question and, in this respect, addressed the question of sporting
sanctions to be imposed on the Respondent 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.
36.
In this regard, the Dispute Resolution Chamber recalled that, as established under
point II./19. above, the breach of contract by the Respondent had occurred during
the protected period. Consequently, the Chamber decided that, by virtue of art. 17
par. 3 of the Regulations, the Respondent 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 Respondent’s
club following the notification of the present decision.
37.
Furthermore, and with regard to the joint and several liability of the Intervening
Party for the payment of compensation for the breach of contract, the Chamber
referred to art. 17 par. 2 of the Regulations, according to which the professional
and his new club shall be jointly and severally liable to pay compensation, and
recalled that the joint and several liability of the new club is independent of any
inducement to a breach of contract by the latter.
38.
In this respect, and taking into consideration that the pertinent breach of contract
by the Respondent occurred in December 2006 and that the Respondent
concluded an employment contract with the Intervening Party in July 2007,
without having entered into another contractual relationship in the meantime,
the Chamber concluded that the player’s new club in the sense of the
aforementioned provision was the Intervening Party. As a consequence, the
Dispute Resolution Chamber decided that the Intervening Party is jointly and
severally liable to pay the compensation to the Claimant.
39.
In conclusion, the Dispute Resolution Chamber decided that the Respondent has
to pay 2,800 and EUR 18,000, plus 5 % of interest, to the Claimant as
compensation for the breach of his employment contract without just cause
during the protected period. In this respect, the Dispute Resolution Chamber also
determined that the Intervening Party is jointly and severally liable for the
payment of the above-mentioned amount of compensation to the Claimant.
40.
Furthermore, the Chamber decided that the Respondent shall be sanctioned with
a restriction of four months on his eligibility to participate in official football
matches, taking effect as from the start of the next season of the player’s new
club following the notification of the present decision.
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41.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
******
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, P, is partially accepted.
2.
The Respondent, S, has to pay to the Claimant, P, the amounts of 2,800 and EUR
18,000 within 30 days as from the date of notification of this decision.
3.
The Intervening Party, F, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
If the aforementioned amount is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
5.
The Claimant, P, is directed to inform the Respondent, S, and the Intervening
Party, F, 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.
6.
A restriction of four months on his eligibility to play in official matches is imposed
on the Respondent, S. This sanction shall take effect as of the start of the next
season of the Respondent’s new club following the notification of the present
decision.
7.
Any further claims lodged by the Claimant, P, are rejected.
******
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Note relating to the motivated decision (legal remedy):
According to art. 63 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
Jérôme Valcke
Secretary General
Encl. CAS directives
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