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
Philippe Piat (France), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
on the claim presented by the club
F
represented by, ABC, attorney at law
as Claimant
against the player
Z
as first Respondent
and the club
D
as second Respondent
regarding an employment-related dispute concerning an alleged breach of contract and
an alleged inducement to breach of contract arisen between the parties involved.
I.
Facts of the case
1.
On 17 November 2006, the player Z (hereinafter: the player or first Respondent),
who was apparently unemployed at that time, and the club F (hereinafter: the
Claimant) entered into an employment contract valid as of 1 July 2007 until 30
June 2008. The said contract provides, inter alia, for a monthly salary of EUR 2,800,
premiums in accordance with the club’s regulations and transport costs in the
maximum amount of EUR 200 per month. Furthermore, the contract contains,
inter alia, the following clauses:
Clause 3 para. 1:
Clause 3 para. 2:
Clause 3 para. 3:
Clause 9 para. 8:
2.
“The contract (…) is only valid for the regional league.
Consequently, it is a condition that the club plays with its 1st
football team in the regional league during the validity period
of the contract”.
“The contract only begins upon the grant of the permission to
play by the Federation”.
“The contract ends prematurely with the coming into effect of
a cancellation agreement between the parties or a termination
without notice for just cause”.
“In case the player does not take up the employment
relationship (…), the player shall be liable to pay to the club a
contractual penalty in the amount of one monthly salary”.
On 1 January 2007, the player concluded an employment contract with the club D
(hereinafter: the second Respondent), valid as of 1 January 2007 until 1 July 2008.
According to this contract, the player is entitled to receive a monthly
remuneration of USD 2,500 as well as the following bonuses:
o
o
o
o
For winning the National Championship
For winning the D. K Cup
For reaching the group stage of the UEFA Champions League
For reaching the group stage of the UEFA Cup
USD 5,000
USD 2,500
USD 10,000
USD 50,000
Furthermore, the contractual entitlements of the player include the amount of
USD 300 per month for an apartment, a car at his disposal and one return flight
ticket.
2
Club F / Player Z and club D
3.
On 27 July 2007, the Football Federation of F contacted FIFA in order to obtain
international clearance for the player. The Football Federation of F explained that
it had asked the Football Federation of D for the player’s international transfer
certificate (ITC) on 29 June 2007. However, it had been informed by its
counterpart on 26 July 2007 that the first Respondent had a valid employment
contract with the second Respondent and did not plan to move to another club.
4.
On 2 August 2007, FIFA invited the Football Federation of D to either issue the ITC
for the player or to present valid reasons possibly justifying a refusal. On 13
August 2007, the Football Federation of D forwarded statements of its affiliated
club and the player, according to which the player was currently playing for D on
the basis of their employment contract dated 1 January 2007. The ITC and
registration of the player had been obtained without any problem, and the
second Respondent had not been informed of any problems whatsoever related to
previous clubs of the player.
5.
In particular, the first Respondent explained that, in November 2006, he had been
offered to sign a contract with F in case the club was promoted to the “regional
league” after the 2006/2007 season. Consequently, since the player had been
unemployed at that time, he had, on 17 November 2006, signed a one-year
contract which was only valid in case the Claimant would play in the “regional
league”. According to the first Respondent, the club had confirmed that he would
receive a copy of the relevant contract as soon as it had been registered. However,
the player affirms never having received a copy of the agreement. Subsequently,
in the end of November 2006, he had been offered an employment contract by D.
In this regard, the player explained that, on the one hand, he had the offer of the
Claimant, a club which was at that time not sure to be promoted to the “regional
league“ and which had failed to send him his contract, and, on the other hand, he
had received the offer of the second Respondent which gave him some security
for the next 18 months. Consequently, he had decided to conclude an
employment contract with the club. The player asserted that he had duly informed
F of his intentions before he signed his contract with D and that the club had not
protested in any form. Therefore, the Claimant had been perfectly aware of the
conclusion of an employment contract between the first and the second
Respondent and should have contacted D in case it objected to this contractual
relationship.
3
Club F / Player Z and club D
6.
The player also referred to clause 3 para. 2 of his contract with F and held that,
since the club had failed to provide him with a copy of his contract, he had been
of the opinion that the contract had not been duly registered and was therefore
not valid. Moreover, with reference to clause 3 par. 3 of the contract with the
Claimant, the player deemed that the conclusion of his contract with D was an
important reason to rescind the contract with F.
7.
The player concluded that he was satisfied playing for the second Respondent and
did not want to play for any other club.
8.
On 17 August 2007, FIFA informed the Football Federation of F, the Football
Federation of D as well as the two clubs involved that, in view of the player’s
contractual relation with D and his explicit wish to stay with the said club, FIFA
was not in a position to intervene with regard to the issuance of the relevant
player’s ITC in favour of the Football Federation of F.
9.
On 28 August 2007, the Claimant asserted, in view of the fact that the validity
periods of the two relevant labour agreements signed by the player partially
overlap, that the player had clearly concluded his contract with D after he had
signed the contract with F. Thereby, the first Respondent had been fully aware of
the contractual obligations previously entered into with the club. Furthermore, F
contested that the player had not received a copy of the contract he had signed
with the club, he had in fact received a copy immediately after its signature on 17
November 2006. The Claimant also contested that it had ever been informed
beforehand that the player would sign an employment contract with the second
Respondent. In fact, the player had informed the coach of F that his contract with
D was only valid until 30 June 2007.
10.
The club emphasised that its contract with the first Respondent had never been
cancelled at any time. On the contrary, the said agreement had been registered
with the regional Football Association on 17 November 2006. In this regard, the
Claimant presented a respective notice of receipt of the regional Football
Association. Consequently, F held that it was clear that the player had breached
his contract with the club. On account of the foregoing, F claimed compensation
from the player in the amount of EUR 150,000, and that D be declared jointly
liable for the payment of the said amount.
4
Club F / Player Z and club D
11.
On 29 October 2007, the second Respondent asserted that it did not see any legal
basis for F’s claim for EUR 150,000 since the latter had not spent any money at all
on the player. Furthermore, it rejected the club’s claim that D be jointly liable for
the said amount, as the club had not broken any rules. D emphasised that it had
borne expenses in connection with the player and that consequently, it would
only agree to his transfer to the Claimant in case the club would pay
compensation in the amount of EUR 200,000.
12.
On 29 October 2007, the first Respondent reiterated that he had never received a
copy of his contract with F and that the club had been well informed that he had
signed a contract with the second Respondent. The respective information had
also been in the press. The player deemed that the only reason why the Claimant
objected to him playing for D was in order to make a financial gain. The manager
of the club had namely previously contacted him in order to negotiate a
compensation for the termination of his contract with F.
13.
On 17 December 2007, the Claimant, apart from reiterating its previous
statements, confirmed that it had negotiated on compensation with the first
Respondent, which had, however, not led to any agreement. Furthermore, it
pointed out that D itself had set the transfer value of the player at EUR 200,000 in
its letter dated 29 October 2007.
14.
In their final positions, the club and the player referred to their respective previous
statements. The player furthermore held that the club had not suffered any
financial damages due to his absence and that the amount of EUR 150,000 claimed
by the club was excessive.
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 28 August 2007. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber,
edition 2005 (hereinafter: Procedural Rules), are applicable to the matter at hand
(cf. art. 18 paras. 2 and 3 of the Procedural Rules).
5
Club F / Player Z and club D
2.
Subsequently, the members of the Chamber referred to art. 3 para. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 para. 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 involves, on the one hand, a club F and, on the other
hand, a player Z and a club D, and is related to an alleged breach of an
employment contract respectively the alleged inducement to such breach of
contract.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 paras. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2008), and considering that the present claim was lodged on 28 August
2007, the previous version of the regulations (edition 2005; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
Entering into the substance of the matter, the Dispute Resolution Chamber
commenced its deliberations by proceeding to a thorough analysis of the
circumstances given in the matter at hand. The Chamber firstly acknowledged
that, on 17 November 2006, the Claimant and the first Respondent had entered
into an employment contract valid as from 1 July 2007 until 30 June 2008. In
continuation, the members present at the relevant meeting took due note of the
fact that, subsequently, on 1 January 2007, the first and the second Respondent
concluded an employment contract valid as from the same date until 1 July 2008.
5.
In this context, the members of the Chamber proceeded to deliberate on the
Claimant’s allegation according to which the player had, by signing two contracts
with partially overlapping validity periods, breached the first of the two contracts
he had entered into, namely the one he concluded with the Claimant.
6.
During its deliberations, the Chamber acknowledged that, whereas the
employment contract concluded between the Claimant and the first Respondent
was originally valid from 1 July 2007 until 30 June 2008, the labour agreement
entered into by the first and the second Respondent stipulated a validity period
lasting from 1 January 2007 until 1 July 2008. Consequently, the members of the
Chamber determined that the validity periods laid down in the respective
agreements were indeed overlapping, i.e. during the period from 1 July 2007 until
30 June 2008.
6
Club F / Player Z and club D
7.
On account of the above, the Dispute Resolution Chamber referred to art. 18 para.
5 of the Regulations, according to which “If a Professional enters into more than
one contract covering the same period, the provisions set forth in Chapter IV shall
apply”, while recalling that the aforementioned Chapter IV of the Regulations
governs the maintenance of contractual stability between professionals and clubs
including the consequences of terminating a contract without just cause.
8.
In this regard, the Chamber reiterated that the player had, after having signed an
employment contract with the Claimant, concluded a further employment contract
with the second Respondent partially covering the same period of time. In this
regard, the Dispute Resolution Chamber was eager to stress that the player had
neither had the consent of the Claimant to proceed in this way nor had he been
able to demonstrate that he had had a just cause to terminate the contract with
the club before signing the agreement with the second Respondent.
Consequently, the members of the Chamber determined that, by signing the
employment contract with the second Respondent partially covering the same
period of time, in accordance with art. 18 para. 5 of the Regulations Chapter IV of
the Regulations shall apply.
9.
The members of the Chamber were of the unanimous opinion that the arguments
which the first Respondent had put forth in his defence, in particular that he had
allegedly not received a copy of his employment contract with the Claimant and
that he had thought that the said agreement had not been duly registered, could
not be upheld, as they did not alter anything with regard to the validity of the
contract concluded by and between the Claimant and the first Respondent.
10.
In view of the above, the members of the Chamber proceeded to deliberate on the
consequences of the player’s signing of two contracts partially covering the same
period of time and, in doing so, first of all referred to art. 17 para. 1 of the
Regulations, according to which “in all cases, the party in breach shall pay
compensation”. Consequently, the Chamber acknowledged that, on the basis of
the circumstances of the present case, the player is liable to pay compensation to
the Claimant for breach of contract. Furthermore, the Dispute Resolution Chamber
took due note that F claims the amount of EUR 150,000, however without further
specifying how this amount is composed.
11.
While determining the amount due as compensation, the Dispute Resolution
Chamber pointed out that, by virtue of art. 17 paras. 1 and 2 of the Regulations,
the amount of compensation may be stipulated in the relevant employment
7
Club F / Player Z and club D
contract. Bearing this in mind, the members of the Chamber referred to clause 9
para. 8 of the agreement between the Claimant and the player, according to
which “In case the player does not take up the employment relationship (…), the
player shall be liable to pay to the club a contractual penalty in the amount of one
monthly salary” and held that this provision was applicable to the present case
since the player had indeed not taken up the employment with the Claimant.
12.
Thus, applying the said clause in the matter at stake, the Dispute Resolution
Chamber came to the conclusion that the player was liable to pay the amount of
one monthly salary as per the relevant employment contract, i.e. EUR 2,800, to the
Claimant for breach of contract. Furthermore, the Chamber determined that, in
application of art. 17 para. 2 of the Regulations, the second Respondent is jointly
and severally liable for the payment of the relevant compensation towards the
Claimant.
13.
On account of all of the above, the Dispute Resolution Chamber concluded its
deliberations by determining that the first Respondent has to pay to the Claimant
compensation amounting to EUR 2,800 and that the second Respondent is jointly
and severally liable for the payment of the aforementioned amount. Finally, the
Chamber declared that all further claims of the Claimant were rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, F is partially accepted.
2.
The first Respondent, Z is ordered to pay compensation in the amount of EUR
2,800 to the Claimant, F, within 30 days as of the date of notification of the
present decision.
3.
In the event that the above-mentioned amount is not paid within the stated time
limit, an interest rate of 5% per year will apply as of expiry of the aforementioned
time limit and the present matter shall be submitted to FIFA’s Disciplinary
Committee for its consideration and decision.
4.
The second Respondent, D is jointly and severally liable for the payment of the
amount mentioned under point III.2. to the Claimant, F.
8
Club F / Player Z and club D
5.
The Claimant, F is directed to inform the first Respondent, Z, and the second
Respondent, D, directly and immediately of the account number to which the
remittance is to be made and to notify the Dispute Resolution Chamber of every
payment received.
6.
Any further requests of the Claimant, F, are rejected.
7.
According to art. 61 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:
Château de Béthusy
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
[email protected]
On behalf of the
Dispute Resolution Chamber:
__________________________
Jérôme Valcke
Secretary General
Encl.
CAS directives
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Club F / Player Z and club D