Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 February 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Carlos Soto (Chile), member
Philippe Piat (France), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
on the claim presented by the club,
X, XX,
as “Claimant”
against the player,
Y, XX,
as “first Respondent”
and the club,
Z, ZZ
as “second Respondent”
regarding a dispute pertaining to breach of contract and inducement to breach of
contract arisen between the parties involved.
I.
Facts of the case
1.
On 1 July 2001, the XXn club, X (hereinafter: the Claimant) and the XXn player Y
(hereinafter: the Respondent 1 or the player), born on 12 April 1978, concluded an
employment contract, valid as from the date of signing the contract until 30 June
2004. By means of two agreements dated 27 May 2004 and 3 January 2006
respectively, the parties mutually covenant to extend the duration of the contract
until 30 June 2008.
2.
A copy of the employment contract and the two above-mentioned agreements
were remitted to the Dispute Resolution Chamber.
3.
According to the employment contract, the Respondent 1 was entitled to receive a
fixed monthly salary of (XXn) 220. On the occasion of the second extension of the
contract’s validity, on 3 January 2006, the two parties signed also an Annex 3 to
the contract, which established the Respondent 1’s remuneration for the seasons
2006/2007 and 2007/2008 more detailed.
4.
The financial terms of the said Annex 3 were, inter alia, the following:
a) The Player shall receive a lump sum payment per season of BGN 10,000 (~USD
7,600)
b) The Player shall receive monthly payments partly dependent on the player’s
participation in official matches:
- BGN 6,500 (~USD 4,812) independent on his participation in official
matches
- BGN 850 (~USD 629)
per match payment
5.
Furthermore, and most notably in the present dispute, the Annex 3 to the contract
stipulated under number IV point 8 that the XXn club, i.e. the Claimant, obliges
itself to release the Respondent 1 in case another XXn or foreign club offers to the
Claimant compensation for the transfer of the player in the amount of at least
EUR 180,000.
6.
On 18 June 2007, the Claimant contacted FIFA and submitted its complaint about
the illegitimate approach of the player by the ZZ club, Z (hereinafter: the second
Respondent), in the course of an envisaged transfer of the player in question to
the aforementioned ZZ club. The Claimant requested that, on the basis of art. 18
par. 3 of the FIFA Regulations for the Status and Transfer of Players, appropriate
sanctions should be applied against the second Respondent. According to the
allegations of the Claimant, the second Respondent had, on 13 June 2007, without
previous establishment of any contact and in spite of a valid and binding
employment contract existing between the player and the Claimant, transmitted
to them an agreement pertaining to the transfer of the player. Moreover,
Club X, XX / Player Y, XX; Club Z, ZZ
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according to the Claimant, the agreement was already signed by the second
Respondent, containing particularly the player’s explicit consent for the transfer,
and the latter requested the Claimant to sign the relevant agreement concerning
the transfer of the player to the second Respondent and to immediately return it
by fax.
7.
A copy of the relevant transfer agreement was remitted to the Dispute Resolution
Chamber.
8.
On 27 June 2007, the player signed an employment contract with the second
Respondent with a term from 1 July 2007 to 30 June 2010. According to the said
contract, the player was inter alia entitled to receive a monthly salary of EUR
28,500.
9.
On 13 July 2007, the ZZ Football Federation () contacted FIFA and requested its
assistance in obtaining the International Transfer Certificate (ITC) for the player
from the XXn Football Union ().
10.
Subsequently, on 16 and 25 July 2007, when it became evident that the player
signed an employment contract with the second Respondent, the Claimant asked
the Dispute Resolution Chamber to determine that the player breached the
employment contract he signed with the Claimant without just cause. Therefore, it
requested that the player should pay compensation for breach of contract and to
impose sporting sanctions on the player. Furthermore, according to the Claimant,
the second Respondent should be held jointly and severally liable for the payment
of compensation. Finally, the Claimant requested that sporting sanctions should
be imposed on the second Respondent for inducement to breach of contract.
11.
On 9 August 2007, the Single Judge of the Players’ Status Committee decided that
the ZZ could be authorised to provisionally register the player with the second
Respondent with immediate effect, pending the outcome of the contractual
dispute between the Claimant and the player respectively the second Respondent.
12.
As regards again the contractual dispute, the Claimant maintained in particular
that, according to art. 16 par. 2 and art. 27 of the Regulations of the for the
Status and Transfer of Players, an employment contract between a XXn player and
a XXn club can only be terminated by a decision of the “Arbitration Committee of
the …” and only if there is just cause for its termination.
13.
An excerpt of the said Regulations were remitted to the Dispute Resolution
Chamber.
14.
Moreover, since the relevant contract had been concluded between a XXn player
and a XXn club, the Claimant deems that the jurisdiction to deal with the
Club X, XX / Player Y, XX; Club Z, ZZ
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termination of such contract is incumbent on the …and not FIFA. In view thereof,
taking particularly into account that the player did not follow the requirements
foreseen by its internal regulations and that therefore the contract it signed with
the player in question had never been legally terminated. Moreover, the Claimant
stressed that it was not directly contacted by the player personally but only by the
second Respondent.
15.
What is more, the Claimant stressed that the relevant clause contained in the
Annex 3 to the contract raises its effect only between the two parties to the
contract and not in favour of a third party, in casu the second Respondent.
Moreover, the Claimant emphasised that the relevant clause is clearly not a
“indemnity clause for the breach of contract” and does also not stipulate the
automatic termination of the contract. The Claimant also stated that through the
approach of the player and the second Respondent in the present matter, it was
put in a position of “fait accompli”, without having the possibility to negotiate
the transfer of the player to the second Respondent.
16.
In reply thereto, the player and the second Respondent asked the Dispute
Resolution Chamber to reject the claim of the Claimant.
17.
In particular, the player and the second Respondent are of the opinion that, in
compliance with Annex 3 number IV point 8 of the employment contract the
player signed with the Claimant, the player may leave his former club if the latter
receives a transfer compensation offer for the transfer of the player from a XXn or
a foreign club at a value of at least EUR 180,000. Given that the second
Respondent had made such offer of compensation for the transfer of the player in
the relevant amount of EUR 180,000 towards the Claimant on 13 June 2007, the
contract between the player and the Claimant had been duly terminated.
18.
Furthermore, both the player and the second Respondent rejected the allegations
with regard to the breach of contract or inducement to breach of contract.
According to the player, before having signed a contract with the second
Respondent, he asked the Claimant on several occasions for termination of the
contract based on the relevant clause in the Annex 3. Subsidiary, the player
referred to his legal representative’s correspondence dated 30 July 2007 addressed
to the Claimant by means of which he informed the latter about the termination
of the contract.
19.
The second Respondent and the player denied that a procedure before the …was
necessary for the player to terminate the contract with the Claimant, given that
the dispute at stake is of an international dimension.
Club X, XX / Player Y, XX; Club Z, ZZ
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 18 June 2007,
as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) on matters pending before the decision making bodies
of FIFA are applicable to the matter at hand.
2.
Subsequently, the members of the Chamber turned their attention to the
argument of the Claimant according to which the matter should be dealt with by
the competent deciding body at the XXn Football Union and not by FIFA since
only the former has jurisdiction to pass a decision pertaining to the termination of
an employment contract signed by and between a XXn player and a XXn club.
3.
In this respect, the Chamber firstly emphasised that the Claimant, by challenging
FIFA’s competence to decide on the present matter, contradicts its own actions. In
fact, it was actually the Claimant who sought FIFA’s intervention in this matter.
The Claimant’s request initially only addressed the second Respondent’s behaviour
in the course of the envisaged transfer of the player in question before
subsequently also taking into account the player’s alleged misconduct, i.e. the
breach of contract without just cause. Furthermore, the Chamber referred the
parties involved to art. 24 par. 1 (in combination with art. 22a), according to which
FIFA and thus the Dispute Resolution Chamber are inter alia competent for
disputes between clubs and players relating to the maintenance of contractual
stability if there has been an ITC (International Transfer Certificate) request and if
there is a claim from an interested party relating to this ITC request, in particular
regarding its issuance, sporting sanctions or compensation for breach of contract.
4.
In light of the above, the members of the Chamber held that they could not back
the Claimant’s argument related to the Dispute Resolution Chamber’s lack of
competence and thus confirmed having jurisdiction to pass a decision in the
present matter involving a XXn club on the one hand and a XXn player and a ZZ
club on the other hand.
5.
Having established its competence to deal with the present dispute, the Dispute
Resolution Chamber analyzed with edition of the Regulations for the Status and
Transfer of Players should be applicable as to the substance of the matter.
6.
In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of
the Regulations for the Status and Transfer of Players (edition 2005) and, on the
other hand, to the fact that the relevant contract at the basis of the present
Club X, XX / Player Y, XX; Club Z, ZZ
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dispute was signed on 5 February 2007 and the claim was lodged at FIFA on 17
September 2007. In view of the aforementioned, the Chamber concluded that the
2005 edition of the FIFA Regulations for the Status and Transfer of Players
(hereinafter; the Regulations) are applicable on the case at hand as to the
substance.
7.
Entering into the substance of the matter, the members of the Chamber then
began by acknowledging the above-mentioned facts and documentation
contained in the file. In particular, the Chamber remarked that the player Y and
the Claimant had signed an employment contract valid from 1 July 2001 until 30
June 2004 and that, at a later date, the aforementioned parties twice agreed on a
mutual basis to extend the duration of the contract until 30 June 2008.
8.
Subsequently, the members referred to the Claimant’s allegations according to
which the player had breached the employment contract by signing a new
employment contract with the second Respondent on 27 June 2007.
9.
In this context, the Chamber noted the first and second Respondent’s statements
of defence, which is that the player was free to leave the Claimant and enter into
a new contract with the second Respondent, since the latter offered the Claimant,
in conformity with the relevant clause in the employment contract signed
between the player and the Claimant, compensation of EUR 180,000.
10.
In view of the above divergent statements of the parties involved, the members of
the Chamber held that the particular clause to which the parties refer and which
appears to form the basis of the present contractual dispute between the player
and the second Respondent on the one hand and the Claimant on the other is laid
down in Annex 3 to the employment contract signed between the Claimant and
the first Respondent.
11.
The Chamber therefore proceeded to closely examine the contents of the relevant
clause contained in number IV point 8 of the Annex 3 of the employment contract
signed between the player and the Claimant. To this end, the Chamber consulted
the translation of the relevant original Annex 3 submitted by the second
Respondent. The Chamber noted that the translation of the documents submitted
by the second Respondent was not contested by the Claimant. According to the
aforementioned translation, the clause in question states that the Claimant is
obliged to release the player if another XXn or foreign club offers the Claimant
compensation of EUR 180,000 for the transfer of the player.
12.
Having thoroughly examined the above-mentioned disputed clause, the members
of the Chamber held that this clause does not leave scope for interpretation but
appears to have been drafted quite precisely. In fact, the Chamber deemed it clear
that if the Claimant were to receive an offer of compensation from any club for
Club X, XX / Player Y, XX; Club Z, ZZ
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the transfer of the player, and should the player wish to change club, the Claimant
would be obliged [emphasis added] to release the player to change club. In the
Chamber’s point of view, the wording of this clause in particular prevents the
Claimant from opposing the transfer of the player in question to the prospective
new club if the prospective new club offers compensation of at least EUR 180,000
to the Claimant for the transfer of the player.
13.
Furthermore, the Chamber referred to the Claimant’s objection that this clause
applies only to the two parties to the contract and not to a third party as in casu
the second Respondent.
14.
In this context, the members deemed the position of the Claimant too formalistic
in that the player himself cannot offer his former club compensation for his
possible transfer but rather it is always the new club which offers compensation
for the transfer of a player to his previous club. Thus, in order to exercise the
option provided for in this clause, the relevant offer of compensation must also
come from the player’s prospective new club. Moreover, the Chamber took the
view that the Claimant contradicts itself again as, on the one hand, it maintains
that the player’s prospective new club must contact it prior to any transfer of the
player in order to negotiate the terms of the transfer and, on the other hand, it
deems that the relevant clause in the contract applies only to the two parties to
the contract, i.e. the Claimant and the player, and not to any third party.
15.
With respect to the aforesaid, and regarding the player’s intention to leave the
Claimant and offer his services to the second Respondent, the Chamber explained
that the offer of compensation for the transfer of the player in question to the
Claimant on 13 June 2007 could have been interpreted by the Claimant as an
action implying intent on the player’s part to leave the Claimant and to sign a
contract with the second Respondent.
16.
Continuing, the Chamber referred to the Claimant’s initial complaint that the
second Respondent’s approach in the course of the envisaged transfer of the
player in question was illegitimate and in violation of art. 18 par. 3 of the
applicable FIFA regulations.
17.
In this respect, the members of the Chamber at first emphasised that the second
Respondent submitted its proposal for the transfer of the player to the Claimant
on 13 June 2007 whereas the employment contract it eventually signed with the
player dates 27 June 2007. Moreover, the deciding body reiterated that due to the
relevant clause contained in number IV point 8 of Annex 3 of the employment
contract signed between the player and the Claimant, the latter was not in a
position to further negotiate the transfer of the player to a third club but could
merely accept an offer of compensation for the relevant transfer if this offer
amounted to at least EUR 180,000.
Club X, XX / Player Y, XX; Club Z, ZZ
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18.
In view of all the above, having examined the various aspects of the Claimant’s
claim and the arguments raised by the player and the second Respondent, the
Dispute Resolution Chamber decided to reject the present claim.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, club X , is rejected.
2.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision and
has to contain all elements in accordance with point 2 of the directives issued by
the CAS, copy of which we enclose hereto. Within another 10 days following the
expiry of the time limit for the filing of the statement of appeal, the appellant
shall file with the CAS a brief stating the facts and legal arguments giving rise to
the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl: CAS directives
Club X, XX / Player Y, XX; Club Z, ZZ
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