Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 March 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Damir Vrbanovic (Croatia), member
on the claim presented by the club,
P,
as Claimant
against the player,
Y,
and the club,
S,
as Respondents
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 28 December 2008, Mr G, President of the club, P (hereinafter: P), travelled
to I in order to meet the player, Y (hereinafter: the player), who was, at the
time, under contract with and playing for the club, A (hereinafter: A), in an
attempt to secure his services for the second half of the season 2008/2009.
2.
On 29 December 2008, a meeting took place between P and A, and an
agreement was allegedly reached concerning the transfer of the player from A
to P. This alleged agreement was not signed by the representatives of A.
3.
According to this transfer document, the player was to be transferred from A
to P for a total amount of USD 100,000.
4.
On 29 December 2008, the President and Vice-President of P also met with the
player and his agent, Mr D, at the end of which an agreement was reached
between P and the player, who both signed an employment contract.
5.
According to the employment contract, which was to take effect as from 2
January 2009 until 31 May 2011, the player was to receive the following
salaries and benefits:
-
for the period 2008/2009: 5 monthly instalments of EUR 15,000, starting on
1 January 2009 until 31 May 2009,
for the period 2009/2010: the total amount of EUR 180,000, starting on 1
June 2009 until 31 May 2010,
for the period 2010/2011: the total amount of EUR 200,000 starting on 1
June 2010 until 31 May 2011.
during the entire duration of the employment contract: a furnished flat
and a car with insurance,
for each season, 2 return tickets.
6.
After these meetings were held in I, the President and Vice-President of P,
awaiting the player’s arrival, the latter being expected by P to arrive on 2
January 2009. However, the player did not show up on this date, nor at a later
date.
7.
According to information provided to FIFA by the T Football Federation, the
player was registered for club, S (hereinafter: S), on 22 January 2009.
8.
On 26 January 2009, P lodged a claim against the player in front of FIFA for
breach of contract. In this respect, P explained that the player, shortly after
having signed the employment contract mentioned above, signed another
employment contract with S. Moreover, S allegedly announced the transfer of
the player from A to S on its website.
9.
P therefore claims compensation for breach of contract from the player, which
should be, according to P, calculated with due consideration to certain
relevant facts and circumstances. In this regard, P based its compensation claim
on the “buy-out clause” mentioned in art. 10 of the employment contract
signed with the player, which stipulates that “the player can change the club,
during the period of this agreement, for the amount of at least EUR 450,000.
The club is entitled to 70% of this buy out, 30% will go to the player”. Thus, P
claims that it is entitled to a compensation of EUR 315,000, i.e. 70% of EUR
450,000.
10.
Furthermore, P stated that the new club of the player, i.e. S, should be held
jointly and severally liable for such compensation payment.
11.
Finally, P requested sporting sanctions against the player.
12.
P also requested the player and his new club to pay for judicial costs in the
amount of EUR 10,000.
13.
On 24 July 2009, S provided its position with regard to P’ claim. In this respect,
S stated that it had been contacted by a players’ agent, Mr R, for the possible
transfer of the player from A to S. Furthermore, S indicated that, after having
contacted A and having obtained the latter club’s permission for such transfer,
it signed an employment contract with the player on 15 January 2009, valid as
from 1 February 2009 until the end of the season 2010/2011.
14.
Equally, on 18 January 2009, A and S signed a transfer agreement, for the total
amount of EUR 100,000, plus EUR 7,265 “which S assumes on behalf of the
player who owes said amount to A”, payable in one single payment.
15.
Furthermore, S indicated that the International Transfer Certificate (ITC) for
the player was requested by the T Football Federation and issued by the I
Football Association without any remarks. Thus, on 22 January 2009, the player
was registered by the T Football Federation.
16.
S affirmed that it had relied on the information provided by the I Football
Association as well as A. Moreover, neither A nor the player had informed S
about some negotiations which had been conducted with P.
17.
Furthermore, considering that the transfer agreement between P and A was
not signed by the representatives of A, S believes the information given by A
and the player to be genuine, as, in fact, no transfer agreement was
definitively signed between A and P.
18.
S also underlined that P had allegedly never requested the player’s
International Transfer Certificate.
19.
Therefore, S emphasised that it had acted in good faith in the present matter
and had taken all necessary measures to conclude the transfer of the player in
compliance with the FIFA Regulations. S thus requested the claim of P to be
entirely rejected.
20.
On 17 August 2009, the player, in reply to P’ claim, explained that, at the end
of December 2008, he was informed that his former club, A, and P had reached
an agreement concerning his transfer. Thereafter, he entered into some
negotiations with the representatives of P and signed an employment
contract. However, he was later on informed by A that the negotiations for his
transfer to P were unsuccessful and that the relevant transfer agreement could
not be signed. In this respect, the player emphasised that, in his opinion, the
transfer agreement submitted by P could not be considered as valid since it
does not bear the signature of A. As a consequence, the player had allegedly
no other choice than to stay with A.
21.
However, according to the player, by mid-January 2009, he signed an
employment contract with S, who also signed a transfer agreement with A.
22.
The player further underlined that, in his opinion, in order for a club to reach
an employment agreement with a player who is under contract, a transfer
agreement must be simultaneously reached, and that if one of these
agreements is not met, the other has no legal value. The player also
emphasised that he has no responsibility or power over the agreement for his
transfer, and that it was up to P to secure his transfer by signing a transfer
agreement with M, which it failed to do.
23.
Moreover, the player stated that, until it lodged a claim in front of FIFA on 26
January 2009, P had never served him or A any notice with regard to his
alleged obligations under the employment contract signed with P.
Furthermore, the player denied having signed the employment contract with S
only a few days after having signed the employment contract with P, since the
employment contract with S was signed by him two weeks after he signed
with P, and during these two weeks, the player did not hear from P.
24.
Therefore, the player is of the opinion that he has clearly not breached any
rule and has acted in good faith during the above-mentioned period of time.
The player thus requested the claim of P to be entirely rejected.
25.
In its replica, P, reacting to the player’s statement of defence, stressed that, in
its opinion, and contrary to the player’s reasoning, the validity of an
employment contract “does not depend on the existence of a (legally valid)
transfer agreement between the old club and the new club”. Therefore, an
employment contract which has been signed by both parties is unconditionally
binding.
26.
Moreover, P noted that the player had acknowledged the fact that he had
signed an employment contract with it. However, he never came to C and,
instead, signed an employment contract with S.
27.
Thus, according to P, the only conclusion in the present matter would be that
the player has unilaterally terminated his contract signed with it, and that he
must pay compensation, which should be calculated according to art. 10 of the
employment contract.
28.
With regard to the statement of defence of S, P insisted on the fact that it is
irrelevant, for the application of art. 17 par. 2 of the Regulations on the Status
and Transfer of Players (hereinafter: the Regulations), whether or not the new
club of the player, i.e. S, was involved or not in the player’s breach of contract.
In P’ opinion, “the sheer establishment that the player terminated the contract
with his club unilaterally without just cause triggers such player’s liability for
the payment of compensation according to art. 17 par. 1. According to art. 17
par. 2 of the Regulations, the new club is jointly and severally liable for the
payment in that case”.
29.
In conclusion, P stated that A had given its authorization to enter into
negotiations with the player and that, although the transfer agreement was
not signed with A, such agreement was reached prior to the player and P
signing the employment contract. According to P, the only reason why A did
not sign the transfer agreement is allegedly because the President of A was
not present during the meeting held on 29 December 2008. Moreover, the
transfer agreement was allegedly drafted by A itself.
30.
Therefore, in view of all of the above, P upheld its initial claim.
31.
In its final position, S upheld its previous statements, in particular that S had
never been informed of the existence of negotiations having taken place
between P, the player and A, and that it had acted in good faith in the present
matter. Moreover, S expressed the opinion that, in order to be liable according
to art. 17 par. 2 of the Regulations, “the new club must at least be in a
position to know that the player is not under contract with a club due to
unilateral termination of the contract. In such cases the new club clearly knows
that there is a risk of paying a compensation to the former club. In exchange
of this risk new club benefits that the player is a free agent and they do not
pay any transfer fee”. Moreover, according to S, art. 17 par. 2 of the
Regulations is a “safeguard for the federative rights of the former clubs of the
player”, and that since the “federative rights” of the player were not
transferred to P, P cannot be considered as being the player’s former club in
the sense of art. 17 par. 2 of the Regulations.
32.
S finally underlined that, in this particular case, it had paid a transfer
compensation to the player’s “former club”, i.e. A, and thus respected the
rights of the player’s “former club”. Therefore, S alleges having acted in line
with the Regulations.
33.
Finally, the player, in his final position, referred to his previous statements
regarding the fact that, since the transfer agreement between P and A had not
been concluded, the employment contract had no legal effect. Moreover, he
affirmed that a valid transfer agreement is a condition for an employment
contract’s validity for a player who is already under contract with another club.
34.
The player came to the conclusion that P, which mislead him about the
conclusion of the transfer agreement with A, cannot request any
compensation against him.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
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 26
January 2009. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
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. b) of the Regulations on the Status and Transfer
of Players (edition 2009) 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 C club, a player and a T club.
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 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2009), and considering that the present claim was lodged on
26 January 2009, the 2008 edition of the regulations (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, entering into the substance of the matter, the members of the
Chamber started by acknowledging the established facts of the case and the
arguments of the parties as well as the documents contained in the file. In this
respect, the Chamber duly noted that P and the player agree on the fact that
they met on 29 December 2008 in order to sign an employment contract, and
that such employment contract, which was to take effect as from 2 January
2009 until 31 May 2011, was indeed signed by both parties on that day.
Equally, it is undisputed that the player was under contract with A when the
representatives of P and of A met on 29 December 2008 in order to discuss the
transfer of the player. Finally, it has also been established that on 15 January
2009, the player and S concluded an employment contract valid as from 1
February 2009 until the end of the season 2010/2011.
5.
In continuation, the Chamber recalled that P had lodged a claim against the
player for breach of contract without just cause and had requested, inter alia,
compensation for such breach in the amount of EUR 315,000, for which
payment S should, according to P, be declared jointly and severally liable.
Furthermore, P had requested sporting sanctions to be taken against the
player. In this respect, the Chamber noted that according to P, the player was
bound by the employment contract signed on 29 December 2008, and that by
signing an employment contract with S on 15 January 2009, the player had
acted in breach of the employment contract signed with P.
6.
At the same time, the members of the Chamber took note of the fact that
both the player and S had rejected P’ claim. In this respect, the Chamber took
due note of the arguments presented by the player, who stated that he had
signed the employment contract with P while being under the assumption that
his transfer from A to P had been finalised. Furthermore, the player explained
that it was only after having signed the employment contract with P that he
had discovered that A and P had not, in fact, signed the relevant transfer
agreement. Additionally, the Chamber duly noted that according to the player,
the validity of the employment contract signed with P was dependent on the
validity of the transfer agreement between A and P. Thus, according to the
player, since the transfer agreement between A and P was never concluded,
the employment contract which he signed with P did not have any legal effect.
7.
In continuation, the Chamber analysed the position presented by S with regard
to the present matter and noted, in this regard, that S had affirmed that it had
not been aware, prior to signing an employment contract with the player, that
A or the player had been conducting negotiations with P in connection with
the player. Furthermore, the Chamber noted that, according to S, it had
obtained A permission in order to secure the services of the player and that the
relevant ITC for the player was issued by the I Football Association, without S
being alerted at any time that the player would in fact be bound by an other
employment contract, i.e. the employment contract which he signed with P.
Thus, S deemed that it had acted in good faith in the present matter and that
it had taken all appropriate measures in order to secure the player’s services.
8.
In view of the allegations and arguments presented by all the parties involved
in the present matter, the Chamber underlined that in order to be able to
establish whether, as claimed by P, a breach of contract had been committed
by the player, it should first of all pronounce itself on the issue of the validity
of the relevant employment contract which was concluded between the player
and P. Indeed, the player holds that the validity of an employment contract is
dependent on the conclusion of a transfer agreement between the club with
which the player is currently under contract and his potential new club.
9.
In this context, first and foremost, the Chamber carefully considered the
player’s assumption that the employment contract should be considered as
having no legal effect in view of the fact that a transfer agreement was never
concluded between A and P. In this respect, the Chamber was eager to
emphasise that, although they may concern the same player and a transfer in
principle constitutes a tripartite situation requiring all parties’ consent, a
transfer agreement and an employment contract are two independent
contracts which do not have the same object. In this respect, the Chamber
stated, on the one hand, that a transfer agreement is usually concluded
between two clubs and pertains mainly to the financial and administrative
aspects of the transfer of a player. The Chamber pointed out that an
employment contract, on the other hand, is concluded between a club and a
player and provides for the employment-related obligations of each party, i.e.
in general, for the player, to perform his duty as a football player, and for the
club, to remunerate the player for his services.
10.
In light of the above, the Chamber concluded that an employment contract
and a transfer agreement are independent from one another and produce
independent legal effects. Thus, contrary to the player’s assumption, the
validity of an employment contract could not be considered as being
dependent on the conclusion of a transfer agreement.
11.
Having stated the aforementioned, the Chamber observed that the player had,
in fact, never contested having signed the employment contract with P on 29
December 2008 and thus, that the relevant contract, valid as from 2 January
2009 until 31 May 2011, had been duly signed by both parties.
12.
Therefore, the Chamber came to the firm conclusion that the employment
contract concluded between the player and P was valid.
13.
Having acknowledged the fact that a valid employment contract had been
concluded between the player and P, the Chamber recalled that, according to
art. 18 par. 5 of the Regulations, a player can only enter into one employment
contract at a time. Furthermore, if a player enters into an employment contract
with different clubs for the same period of time, the provisions of Chapter IV
of the Regulations regarding the maintenance of contractual stability between
professionals and clubs apply (cf. art. 18 par. 5 of the Regulations).
Furthermore, the Chamber was eager to emphasise that if a player signs a
second employment contract covering the same time period as the first one,
this player effectively acted in breach of the first employment contract.
14.
In view of all of the above, the Chamber concluded that, by signing an
employment contract with S on 15 January 2009, the player had unilaterally
terminated the employment contract with P without just cause.
15.
In this context, the members of the Chamber referred to item 7. of the
“Definitions” section of the Regulations, which stipulates inter alia that the
protected period comprises “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, or two entire seasons
or two years, whichever comes first, following the entry into force of a
contract, where such contract is concluded after the 28th birthday of the
professional”. In this regard, the Dispute Resolution Chamber pointed out that
the employment contract with P was valid as of 2 January 2009, whereas the
unjustified breach of contract by the player occurred on 15 January 2009 due
to his signing another employment contract, with S, covering the same time
period. Consequently, the Chamber concluded that, regardless of the age of
the player at the time of signing the employment contract with P, the breach
of contract by the player had obviously occurred within the applicable
protected period.
16.
Having stated the above, the members of the Chamber turned their attention
to the question of the consequences of such unjustified breach of contract
committed by the player during the protected period.
17.
In doing so, the Dispute Resolution Chamber first of all recalled the provisions
of art. 17 par. 1 of the Regulations, in accordance with which a consequence of
terminating a contract without just cause is the payment of compensation by
the party in breach to the counterparty. In this respect, the members of the
Chamber noted that P’ assertions that “the sheer establishment that the player
terminated the contract (…) without just cause triggers such player’s liability
for the payment of compensation (…)” had to be properly assessed in the
present case. In this regard, the Chamber strongly affirmed that, contrary to P’
opinion, the particular circumstances surrounding the breach of contract by
the player in the present case had to be taken into consideration in order to
determine whether compensation was payable by the player and, in joint
liability (cf. art. 17 par. 2 of the Regulations), his new club.
18.
In light of the above, the Chamber acknowledged that when signing an
employment contract with the player, P was well aware of the fact that the
player was already under contract with another club, i.e., A. Indeed, it is
undisputed that the representatives of P and of A had met to discuss the
transfer of the player during the course of his employment contract with A.
However, no transfer agreement was in fact signed between P and A, as a
result of which P effectively signed an employment contract with a player who
was still under contract with another club.
19.
In this respect, the members of the Chamber were eager to emphasise that
prior to entering into an employment contract with the player, P should have
made sure that it had obtained the definitive consent of A with regard to the
transfer of the player from A to P. In this regard and bearing in mind art. 12
par. 3 of the Procedural Rules, the members of the Chamber underlined that P
had failed to demonstrate that a valid transfer agreement had been concluded
with A, since the transfer document presented by P to the Chamber
undoubtedly did not bear the signature of A’s representatives. The Chamber
noted that no other documentation was presented by P to substantiate its
assertion that A had in fact agreed to the transfer of the player to P.
20.
In light of the considerations mentioned above, the Chamber came to the
conclusion that P had clearly committed a fault by entering into an
employment contract with the player at a point in time when it did not have
the definitive consent of A to sign an employment contract with the player.
21.
Having stated the above, the members of the Chamber held that, in
accordance with the legal principle of nemo auditur propriam turpitudinem
allegans, it could not enforce P’ claim for compensation for breach of contract
by the player, since, as established above, P was itself at fault by signing the
relevant employment contract with the player. In other words, the Chamber
concluded that due to P’ fault, as established above, P could not be eligible to
receive compensation in the case at hand.
22.
Therefore, the Dispute Resolution Chamber decided that P’ claim for
compensation for breach of contract against the player and, in joint liability,
his new club, S, must be rejected.
23.
In continuation, the Chamber focused its attention on the further
consequences of the breach of contract by the player, and in this respect,
addressed the question of sporting sanctions against the player in accordance
with art. 17 par. 3 of the Regulations. The cited provision stipulates that
sporting sanctions shall be imposed on any player found to be in breach of
contract during the protected period. Furthermore, the Chamber recalled, once
again, that art. 18 par. 5 of the Regulations, which deals with the
consequences of entering into more than one contract covering the same time
period, clearly states that a player shall be subject to the provisions of Chapter
IV of the Regulations regarding the maintenance of contractual stability
between professionals and clubs.
24.
Returning to the facts of the case at hand, the Chamber restated that the
breach of contract by the player had occurred during the protected period (cf.
point II.15 above). Consequently, the Chamber decided that by virtue of art. 17
par. 3 of the Regulations, the player had to be sanctioned with a restriction of
four months on his eligibility to participate in any official football matches. In
this context, the Chamber recalled that this is the minimum sanction provided
for by the Regulations and the Chamber does not have any scope of discretion
to diminish the duration of the suspension. This sanction shall take effect as
from the notification of the present decision.
25.
Finally, the Dispute Resolution Chamber held that the Claimant’s claim for
reimbursement of legal costs was rejected in accordance with art. 18 par. 4 of
the Procedural Rules and the Chamber’s respective longstanding jurisprudence.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the club, P, is partially accepted.
2.
The player, Y, is found to have terminated the employment contract with P
without just cause.
3.
A restriction of four months on his eligibility to play in official matches is
imposed on the player Y. This sanction shall take effect as of the notification
of the present decision.
4.
Any further claim lodged by the club, P, is rejected.
*****
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