Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 5 December 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
Gerardo Movilla (Spain), member
Caio Cesar Vieira Rocha (Brazil), member
on the claim presented by the club
S,
as Claimant
against the player
J,
as Respondent
and the club
O,
as Co-Respondent
regarding a dispute between the club and the player and his new club.
I.
Facts of the case
1.
On 2 August 2005 the club S and the company T signed a loan agreement with a
purchase option with the consent of the player J (hereinafter: the player). In the
contract the parties agreed on a loan compensation of USD 425,000, plus
compensation of USD 1,696,000 in the event that the purchase option was exercised,
both payable by the club S to the company. The purchase price of USD 1,696,000 was
payable as follows:
USD 636,000 by 31 December 2005
USD 530,000 by 31 December 2006
USD 530,000 by 31 December 2007
2.
On 1 July 2005 the club S and the player signed an employment contract. Point 3 of
said contract states that the contract is valid for the 2005 Apertura and 2006 Clausura
tournaments. Furthermore, in the event that the club S exercised the abovementioned purchase option, the contract would be extended from the 2006 Apertura
tournament to the 2008 Clausura tournament. The parties also stipulated that the
club S had the right to extend the contract for two further years (2008 Apertura to
2010 Clausura) unless the player received an offer from a third club that the club was
unable to better. In the event that the player received no offer from a third club, he
would agree to extend the contract for another two years at club S request in
exchange for a 20% salary increase on the previous year, including an “anticipated
transfer premium” (“prima anticipada de transferencia”) in accordance with
appendix 1 to the employment contract.
The contract provides for a total remuneration of USD 75,000 for the season
2005/2006 and USD 150,000 for the following seasons until and including 2009/2010.
Furthermore, the player was entitled to receive an “anticipated premium” (“prima
anticipada”) of USD 225,000 for the season 2005/2006 and of USD 450,000 for each of
the following seasons until and including 2009/2010 (in case the respective options
were exercised).
3.
On 19 July 2006 the O and the player signed an employment contact valid until 30
June 2009. The monthly salary agreed upon was EUR 880.41 plus various bonus and
instalments totalling EUR 2,876,470.
4.
On 22 August 2006 the Single Judge of the FIFA Players’ Status Committee authorised
the G Football Association to provisionally register the player with the club O in
proceedings before FIFA concerning the issue of an International Transfer Certificate.
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Claim
5.
On 31 October 2006, club S lodged a claim before FIFA alleging that it paid the
company T the loan compensation of USD 425,000. Club S also alleges that it
exercised the purchase option mentioned above and paid the first instalment of USD
636,000 (evidence on file).
6.
Club S further states that it signed a contract with the player for a total of three
seasons, namely until the end of the 2007-2008 season. The player only worked for
the club until the beginning of July 2006. In the 2006-2007 pre-season, the player
allegedly requested a few days off to settle family matters. However, the player is
alleged to have actually travelled to sign a contract with the defendant, as emerged
from various reports in the media (contained in the file).
7.
Club S had allegedly intended to adhere to the terms of the employment agreement
and had already paid the player salary for the month of July 2006 totalling 550,000,
despite the fact that the player was already in G by this time.
8.
The claimant says it sought to reach an amicable settlement regarding the player’s
transfer, but was unsuccessful.
9.
According to club S, the contract signed by the player and the club O on 19 July 2006
breached the employment contract between it and the player of 1 July 2005. In
particular, the club O did not take over liability for the club S’ debts with the
company T.
10. Furthermore, the club S alleges that it was necessary to replace the player, incurring
expenses in the region of USD 400,000.
11. The club S therefore seeks the following:
a. Acknowledgment that the loan agreement with purchase option signed by the
club S, the player and the company T on 2 August 2005 was breached and a
ruling that the defendant must assume the undertakings given in said
agreement by way of a subrogation;
b. Reimbursement of the salary paid for July 2006 in the amount of 550,000
including interest;
c. Reimbursement of the first instalment of the purchase option in the amount of
USD 636,000 including interest dating back to 29 December 2005; and,
d. Compensation for the breach of contract to cover the expense incurred in
signing a new player, namely USD 400,000.
The player, the club O and the company T are to be held jointly liable for the
amounts claimed.
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12. Before opening its inquiry, FIFA informed the club S that its claim against the
company could not be admitted because the company is not considered a party
under art. 6.1 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (DRC).
Response by the player and the club O
13. The player and the club O reject the club S’ claim.
14. They allege that the employment contract between the player and the club S was
only valid for one year, namely from the date it was signed (1 July 2005) until the
end of the 2006 season, i.e. until June 2006. The contract does however provide the
club S with two extension options for two seasons each. The player and the club O
allege that, as the Single Judge of the FIFA Players’ Status Committee already ruled in
proceedings before FIFA regarding the issue of an International Transfer Certificate,
the extension options are invalid because they breach fundamental labour principles.
This ruling is based on the jurisprudence of the FIFA Dispute Resolution Chamber,
which has been repeatedly upheld by the Court of Arbitration for Sport (CAS).
Consequently, the employment contract signed by the player and the club S has
expired in June 2006.
15. The player, who from the end of June 2006 was no longer contractually bound to the
club S for the above-mentioned reasons, did not sign an employment contract with
the defendant until 19 July 2006. Consequently, the player did not commit a breach
of contract and the club O did not induce the player to commit a breach of contract.
Response from the club S
16. The club S reiterates that the employment contract between it and the player was
valid for three years, not one year as claimed by the other parties.
17. According to the club S, the employment contract could only be extended for
another two years after the three years had expired. In other words, the player
clearly abandoned the club before the end of the official duration of the contract
(before the first three years).
18. The club S further asserts that it continues to be obliged to pay the instalments on
the purchase option to the company T in accordance with the loan agreement with
purchase option of 2 August 2005.
Response by the player and the club O
19. The player and the club O stand by their previous submissions.
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20. Regarding the salary payment corresponding to the month of July 2006 allegedly
made to the player by the club S, the player and the club O state that they were
made (if at all) on a former bank account of the player that was in disuse as from the
moment he left the country in the beginning of July 2006. The player is consequently
not in a position to tell what effectively happened to these amounts and particularly
whether the bank has maintained these amounts or returned them.
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, it took note that the present matter was
submitted to FIFA on 31 October 2006. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 18 par. 2
and 3 of the Procedural Rules).
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. a of the Regulations on the Status and Transfer of Players (edition
2008) the Dispute Resolution Chamber is competent to adjudicate on disputes
between clubs and players in relation to the maintenance of contractual stability if
there has been an ITC request 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.
Furthermore, the Chamber analyzed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition
2008), and considering that the present claim was lodged on 31 October 2006, the
previous version of the regulations (edition 2005; hereinafter: 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. The members of
the Chamber started by acknowledging the above-mentioned facts as well as all the
further documentation contained in the file.
5.
In this respect, the Chamber took note that the club S and the company T signed a
loan agreement with a purchase option with the consent of the player J. The
Chamber acknowledged that no limitation of the duration of the loan was
stipulated in the mentioned contract.
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6.
To that regard, the Chamber reiterated that claims derived from a contract
concluded with a company cannot be taken into consideration due to the lack of
competence of the present deciding body. Therefore, the Chamber decided not to
take into account all allegations and claims of the litigating parties regarding the
company in the present case.
7.
In continuation, the Chamber acknowledged that on 1 July 2005 the club S and the
player J signed an employment contract valid until June 2006 (2005 Apertura and
2006 Clausura tournaments), which also stipulated that if the club exercised the
purchased option contemplated in the contract concluded with the company T (cf.
numeral 5.), such contract would be extended from the 2006 Apertura tournament
to the 2008 Clausura tournament; and, in addition, that the club also had the right
to extend the contract for two further years (2008 Apertura to 2010 Clausura), unless
the player received an offer from a third club that the club was unable to better.
8.
Furthermore, the Chamber took due note that on 19 July 2006 the player J and the
O signed an employment contract valid until 30 June 2009.
9.
In this respect, the Chamber analyzed that on the one hand, the club S stated that it
paid the company T the loan compensation for the player J and that it exercised the
purchase option by paying the first of three installments stipulated in the abovementioned contract (cf. numeral 5.), and because of this the club is of the firm
opinion that the contract signed by the player and the club O breached the
employment contract between it and the player and in particular that the club did
not take over liability for the club’s debts with the company T. Furthermore, the club
S states that it paid the player the salary for the month of July 2006 totaling 550,000,
despite the fact that the player was already in G by this time.
10. On the other hand, the members of the Dispute Resolution Chamber acknowledged
that the player J and the club O stated that the employment contract between the
player and the club S was only valid for one year, namely from the date it was signed
(1 July 2005) until June 2006 and because of this the player was no longer
contractually bound to the club when he signed with the club on 19 July 2006; and,
in consequence, the player did not commit a breach of contract and the club O did
not induce the player to commit a breach of contract, hence not being liable for any
debts the club might have acquired. Furthermore and regarding the salary payment
corresponding to the month of July 2006 allegedly made to him by the club S, the
Chamber also took note that the player J stated that it was made on a former bank
account that was in disuse as from the moment he left the country in the beginning
of July 2006 and, therefore, he is consequently not in a position to tell what
effectively happened to these amounts.
11. In consideration of these positions, the members of the Chamber continued their
deliberations by analyzing the question if any contractual link existed between the
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club S and the player J at the time he concluded his employment contract with the
club O.
12. In this context and as previously mentioned (cf. numeral 6), the Chamber stipulated
that the loan contract with a purchase option celebrated between the club S and
the company T cannot be recognized due to the Chamber’s lack of competence to
deal with matters relating to companies. In consequence, the Chamber decided that
neither the loan nor the option for a definitive transfer could be recognized.
13. In this respect and due to the fact that the option for extension of the employment
contract was dependant on a condition contained in a contract that cannot be not
recognized by the Dispute Resolution Chamber, the Chamber determined that the
club S and the player J were only contractually bound by an employment contract
valid for one year (1 July 2005 to June 2006). Therefore, the Chamber established
that the contractual relationship between the club S and the player J in fact
terminated in June 2006 and therefore the mentioned player was free to leave the
club on July 2006 in order to sign with a club of his choice.
14. As a result, the Chamber came to the conclusion that the player J had a valid
employment contract with the club S that was over after its one year validity (July
2006), due to the fact that the option to prolong such contract was based on a
document not recognized by the Chamber, and therefore the mentioned player did
not commit a breach of contract and the club O did not induce such player to a
breach of contract.
15. Furthermore, the Chamber recognized that the club S provided evidence that it paid
the player J’s salary for the month of July 2006 totaling 550,000, despite the fact that
the player was already in G by this time. Also, the Chamber established that the
player did neither explicitly contest having received this amount nor had he
provided any documentary evidence in order to corroborate his claim that the bank
account to which the salary payment was made was in disuse as from the moment
he left the country.
16. On account of the established considerations and due to the fact that the player
was no longer contractually bound to the club when the mentioned payment was
made in July 2006 (cf. numeral 15), the Dispute Resolution Chamber decided that the
player J must reimburse the 550,000 it received to club S.
17. Finally, the Dispute Resolution Chamber decided that any further claims of the club
have to be rejected in view of its above considerations.
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III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, club S, is partially accepted.
2. The Respondent, J, has to pay the amount of 550,000 to the Claimant within 30
days as from the date of notification of this decision.
3. Any further claims lodged by the Claimant are rejected.
4. If the aforementioned sum 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 so
that the necessary disciplinary sanctions may be imposed.
5. The Claimant is directed to inform the Respondent 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.
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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:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives