Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 March 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
Rinaldo Martorelli (Brazil), member
Essa M. Saleh al Housani (UAE), member
Ivan Gazidis (USA), member
on the claim presented by the club
S,
as Claimant
against the player
A,
and the club
K FC,
and the club
L,
as Respondents
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
The I player, A (hereinafter: the player), born on 17 July 1987, signed an
employment contract with the T club S (hereinafter: S) on 30 July 2007, valid from
27 July 2007 until 30 June 2010.
2.
According to this employment contract, the player was entitled to receive:
-
for the season 2007/2008: a monthly salary of USD 1,500 and an incentive
bonus of USD 20,000
for the season 2008/2009: a monthly salary of USD 1,750 and an incentive
bonus of USD 25,000
for the season 2009/2010: a monthly salary of USD 2,500 and an incentive
bonus of USD 40,000.
3.
For each season, the player was to receive two flight tickets for the itinerary T – A
– T.
4.
On 15 October 2007, the player signed an employment contract with the G club K
FC (hereinafter: K FC), in spite of his employment contract with S.
5.
On 20 November 2007, S lodged a formal claim with FIFA against the player, and
alleged that the latter had left the club without authorisation since 20 August
2007. According to S, the player was registered with the G club K FC. S asked the
player to immediately resume duties with its club and, in the event he would not
come back to T, that sporting sanctions be ordered against him. However, S did
not ask for sporting sanctions to be ordered against K FC.
6.
In reply thereto, the G Football Association forwarded a letter dated 14 December
2007 signed by the alleged legal representative of the player, informing FIFA that
the player “[…] is not a party to any contract with the Club S…” and that “no such
agreement has or could have been entered into by our client”.
7.
On 19 May 2008, the G Football Association forwarded K FC’s position regarding
the claim lodged by S. In this regard, K FC provided FIFA with a copy of a
declaration dated 22 October 2007 from the G Football Association, stating that its
Player Status Committee had declared the player free, as his contract with the G
club N had expired on 11 July 2007. This declaration indicated, however, that this
decision had been passed "without prejudice to the outcome of the case before
FIFA on (his) alleged breach of contract". K FC also submitted the player’s
registration form at the G Football Association, which indicated that the player
was registered on 15 October 2007.
2/12
8.
Finally, K FC alleged that the player had been granted permission to visit his sick
mother after the 1st round of the championship and had since then not returned
to the club.
9.
On 30 June 2008, S contacted FIFA again and indicated that the player appeared
to be in F.
10.
The Football Federation of F never replied to FIFA’s request to be informed about
the player’s whereabouts and the club for which he would be allegedly playing for
in F.
11.
On 28 October 2008, S again contacted FIFA and asserted that the player had
allegedly signed an employment contract with the B club, L (hereinafter: L), and
that the latter club’s website indicated false information about the player, i.e. that
his nationality was N and that his name was H. Therefore, S claimed for sporting
sanctions to be ordered against the player as well as against L.
12.
In reply thereto, L stated that it had been following the player’s performances
during the second half of the season 2007-2008, when he was playing with the
club C in F. The club had allegedly been informed that the player had been
transferred from K FC to the club during the course of the season 2007-2008, and
that he was under contract with C from 18 April 2008 to 12 April 2010. L and C
signed an agreement for the transfer of the player to L, dated 1 August 2008.
13.
At the same time, L signed an employment contract with the player, according to
which the player was to play for the said club for three seasons, to be prolonged
by two additional years. An International Transfer Certificate was issued by the
Football Association of F upon request from the B Football Association.
14.
Furthermore, L alleged that it should be considered as a third party to the present
dispute, since it was not the first club for which the player had signed since he left
S. In this regard, L observed that the player had played with two subsequent clubs
since his departure from S and until his arrival at L.
15.
L asserted that, given the circumstances of the player’s registration with the club,
it could not be reproached to have induced the player to breach his employment
contract with S, and that therefore no sporting sanctions could be ordered against
it.
16.
L therefore rejected entirely S’s claim.
17.
The player, in reply to S’s claim, stated that, while being under contract with the G
3/12
club N, which was to expire on 11 July 2007, he had been invited by S for some
trials during the month of February 2007. As the trials were successful, the player
and S signed a pre-contract for three seasons.
18.
Upon expiry of his contract with N, the player went to T in order to finalize his
contract with S. There, the player allegedly discovered that S had registered what
he thought was only a pre-contract with the T Football Federation, and that he
was in fact bound by this contractual obligation for five years, as the S club had
reserved its right to prolong the initial agreement by two additional years.
19.
The player thus allegedly expressed his disapproval with regard to S’s behavior. He
was then allegedly not entitled to train with the rest of the team, nor to play in
any match between mid-July and mid-August.
20.
The player further alleged that, during that time, he did not receive any money
from the club, and that his financial situation was extremely difficult. This would
be the reason why he was forced to return to G on 20 August 2007. With the
support of the G Football Association, and in order for him not to remain
unemployed, the player then signed a permanent employment contract with K FC.
21.
In February 2008, the player was transferred to C in F, where his sportive
performances were noticed by L, with which he later signed an employment
contract.
22.
The player concluded by declaring that FIFA should take into account the fact that
his employment contract with S had never been executed and that he had not
received any salary from the latter club. Furthermore, S had not paid any transfer
compensation for him and had not trained him, and no International Transfer
Certificate had allegedly been issued by the G Football Association upon his move
to S.
4/12
23.
Finally, the player emphasized that no sporting sanction should be ordered against
him, as such a sanction would constitute a breach of contract according to B law,
while his new club, L, had acted according to the applicable FIFA Regulations in
the present matter. He therefore rejected entirely S’s claim.
24.
In its replica, S alleged that it had signed a professional contract with the player
on 8 February 2007 but that, upon his arrival at S, the player had expressed his
wish to amend the terms of the said contract. S had thus allegedly increased his
salaries for the first three seasons, and allowed him to exercise an option to renew
his contract for the last two seasons of the five-year period. S and the player thus
signed a second contract on 30 July 2007.
25.
Furthermore, S denied the player’s allegations that he had not been paid during
his stay with the club. Indeed, S affirmed that the player had been paid 50
(approx. USD 35) on 23 July 2007, 1000 (approx. USD 695) on 1 August 2007 and
100 (approx. USD 70) on 5 August 2007. Moreover, the player had been staying in
two luxury hotels in T. S thus concluded that it had fulfilled all its contractual
obligations towards the player until his departure.
26.
In view thereof, S asked that all the expenses incurred by the player’s stay in two
hotels, as well as the amounts that he received as advance payment of salary in
the total amount of 1,150 (USD 800), be reimbursed, and recalled its request that
all necessary sporting sanctions be imposed on the player and his new club, L. In
particular, S emphasized that L knew perfectly well that the player had been
previously under contract with S, since the B Football Federation had requested
the International Transfer Certificate from the Football Association of B, and that
the latter association had been informed by FIFA that the player appeared to be
under contract with S. Moreover, L had given false information regarding the
player on its Internet page, thus misleading the public and trying to hide the fact
that the player had a valid employment contract with S. Therefore, according to S,
L did induce the player to breach his contract with it.
27.
Invited by FIFA to provide their final positions in the present matter, both the
player and L adhered to their respective positions. L emphasized that the
information given on its Internet page could not be interpreted as deliberate
misleading action. Indeed, L did not know of S’s claim at the time of the player’s
transfer from C to the B club.
28.
The player added that S did not provide evidence that an International Transfer
Certificate had indeed been issued by the G Football Association upon his move to
S, and that without such an issuance, the player could not be eligible to play with
S.
5/12
29.
On 2 March 2009, K FC provided its position with regard to its possible joint
responsibility with the player for compensation for breach of contract according to
art. 17 par. 2 of the Regulations for the Status and Transfer of Players. In this
regard, K FC stated that the player’s contract with N FC of G had expired on 11
July 2007, and that the G Football Association had declared him free of contract
on 22 October 2007. Therefore, K FC considered that the player had been duly
registered for its club.
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 20 November 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 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 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 S and a player.
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 2008), and considering that the present claim was lodged on 20 November
2007, 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. In this respect,
first and foremost, the members of the Chamber acknowledged that the player
and S had signed an employment contract valid from 27 July 2007 to 30 June 2010.
5.
In this regard, the members of the Chamber noted that the player and S had
divergent opinions about the validity of the contractual relationship.
6.
Indeed, the player presented several arguments which led him to affirm that the
contract, which he does not contest having signed with S, was in fact not valid. In
6/12
support of this position, the player asserted that, upon his arrival at S, he had
discovered that what he thought was a pre-contract was in fact a final and
binding contract. However, he was opposed to certain terms of this agreement,
for instance to the prolongation of the employment relationship by two sportive
seasons upon exercise of a unilateral option by the club. Furthermore, the player
alleged that the contract had not yet been executed when he left S, and that no
International Transfer Certificate had been requested by the T Football Federation
from the Association of his former club, the G Football Association. Finally, the
player claimed that he had not been paid by S, and that his financial situation was,
during his stay in T, very difficult. Therefore, the player asserted that he had
legitimately left S, in view of the fact that he did not consider himself as being
bound by a valid employment relationship with the said club.
7.
The Chamber then proceeded to examine the arguments of S with regard to the
validity of the litigious employment relationship.
8.
In this respect, the panel noted that S considered the employment contract signed
with the player as a valid and binding contract, as it was indisputably signed by
the player, as well as by the club, on 30 July 2007. Moreover, S alleged that it had
requested and obtained the International Transfer Certificate for the player,
without, however, submitting a copy of such certificate to FIFA. In addition, S
emphasized that the player had been paid by the club during his stay in T. Indeed,
S stressed that the player had, during his stay, received 1,150 (approximately USD
800), and that he had stayed in two luxury hotels at the club’s expense.
9.
Having taken due note of the arguments of both the player and S as to the
validity of the employment relationship in question, the Dispute Resolution
Chamber underlined that there did not seem to be any indication that only a precontract had been signed between the parties, but that the litigious contract
signed on 30 July 2007 contained all the essentiali negotii of a professional
contract between a player and a club. Moreover, the panel observed that the
contract had been executed by S, which had provided sufficient evidence as to the
payment of the player’s salary during his stay in T.
10.
Additionally, with regard to the question of whether an International Transfer
Certificate had been issued for the player, the Chamber was eager to emphasize
that this question was secondary to that of the validity of the employment
contract. Indeed, the panel strongly affirmed that, as a general rule, a player
should be considered as bound by an employment contract from the moment that
he has signed the contract in question and that the date of execution has elapsed,
regardless of whether or not the Association to which his new club is affiliated has
taken the necessary steps towards the issuance of his International Transfer
Certificate.
7/12
11.
In view of the above considerations, the Dispute Resolution Chamber held that
that the player and S were bound by a valid employment contract which had been
signed by both parties and which had been respected by S. Furthermore, in lack of
other defense which could possibly justify the conclusion of an employment
contract between the player and the G club K FC, the Dispute Resolution Chamber
established that, by entering into a labour contract with the K FC club, the player
had breached his employment contract with S without just cause.
12.
Having stated the above, the Chamber then turned its attention to the question of
the consequences of such breach of contract by the player.
13.
In so doing, the members of the Chamber first took due note of the fact that S’s
claim was, primarily, for sporting sanctions to be imposed on the player as well as
on L. Furthermore, S claimed that it should be reimbursed from all expenses
incurred by the player’s stay in T. Finally, the panel noted that S did not request
sporting sanctions against K FC, the latter club being the new club with which the
player signed after he left S.
14.
In view of the foregoing, the members of the Chamber first of all established that
in accordance with art. 17 par. 1 and par. 2 of the Regulations, it had to examine
whether the player is, in the present case, liable to pay compensation and, in the
affirmative, whether the player’s new club must be jointly and severally liable for
the payment of compensation. With regard to the second question, the panel was
eager to point out that, in line with the well-established jurisprudence of the
Chamber, the club who would be jointly and severally liable for the payment of
compensation is the player’s new club, i.e. the first club for which the player
registered after the contractual breach.
15.
Having recalled the applicable rules regarding the payment of compensation for
breach of contract without just cause, the Chamber held that, in the present case,
given the nature of S’s claim regarding financial compensation, and having
established the responsibility of the player for breach of contract, the latter shall
be held liable to pay compensation to S. Furthermore, in accordance with the
unambiguous contents of art. 17 par. 2, the panel held that the player’s new club,
i.e. K FC, shall be jointly and severally liable for the payment of compensation. In
this respect, the Chamber strongly affirmed that, contrary to S’s allegations, L,
which is in fact the third club for which the player registered after having left S,
could not be jointly and severally liable for the payment of compensation, and
that only K FC, being the first club for which the player registered after the
contractual breach, could be liable for the payment thereof.
16.
Having stated the above, the Dispute Resolution Chamber focused its attention on
the calculation of the amount of compensation for breach of contract in the case
8/12
at stake. In this regard, the Chamber noted that S only asked to be reimbursed
from all expenses incurred by the stay of the player at the club, i.e. the salary paid
during the player’s stay in T before he abruptly left the club, as well as hotel
expenses for his stay in two luxury hotels in T.
17.
In view of the above, and after a careful study of the documentation on file, the
Chamber noticed that S did not provide any documentary evidence, such as
payment receipts, for the expenses allegedly incurred for the player’s stay in two
hotels. Therefore, the Chamber, in view of the lack of evidence provided by S, held
that these expenses could not be reimbursed to the said club.
18.
Notwithstanding the above, the Chamber examined the documents pertaining to
the salary paid to the player during his stay. In this regard, the panel first recalled
that the player had, during the course of the investigation of the present matter,
alleged that he had not received any salary from S and had thus asserted that this
lack of payment led him to consider himself as not being bound by any contractual
relationship with S and to, eventually, leave the S club.
19.
However, the Dispute Resolution Chamber observed that some payments receipts,
which undoubtedly bear the signature of the player, indicated that the player had,
during his stay in T, received a total amount of 1,150 (approximately USD 800),
while his monthly salary was of USD 1,500 for the first season of his contract.
20.
Consequently, the Chamber decided that the player must pay the amount of 1,150
to S as compensation for breach of contract. Furthermore, the club K FC is jointly
and severally liable for the payment of the relevant compensation.
21.
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 against the player 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.
22.
In light of the foregoing, the Dispute Resolution Chamber first examined whether
the breach of the contract by the player had occurred during the protected period.
In this regard, the Chamber referred to item 7. of the “Definitions” section of the
Regulations, which provides, 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 before the 28th birthday of
the professional”. In this regard, the Dispute Resolution Chamber pointed out that
the player, who was born on 17 July 1987, was 20 years of age when he signed his
employment contract with S. Therefore, the panel held that the breach of the
relevant contract had occurred within the applicable protected period.
9/12
23.
Therefore, the Dispute Resolution Chamber decided that, as provided by 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 match. This
sanction shall take effect from the start of the next season of the player’s club
following the notification of the present decision.
24.
Finally, the Chamber turned its attention as to whether, in view of art. 17 par. 4 of
the Regulations, and as claimed by S, L should be considered as having induced the
player to breach his contract with S and, in the affirmative, whether L should be
imposed sporting sanctions in the form of a ban from registering any new players,
either nationally or internationally, for two registration periods. In this regard, the
panel was eager to emphasize that there was no causal link between the player’s
breach of contract and the fact that the player, after having signed respectively
with two different clubs, i.e. the club K FC and the club C, signed an employment
contract with L.
25.
Therefore, the Dispute Resolution Chamber ruled that L could not be considered
as having induced the player to breach his employment contract with S, and that
no sporting sanctions should be ordered against L.
*****
10/12
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the T club S is partially accepted.
2.
The I player A has to pay the amount of 1,150 to the club S within 30 days of
notification of the present decision.
3.
The G club K FC is jointly and severally liable for the payment of the
aforementioned compensation.
4.
S is directed to inform the player A and the club K FC 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.
5.
If this amount is not paid within the aforementioned time limit, a 5% interest rate
per annum as of the expiry of the said time limit will apply and the matter will be
submitted, upon request, to the FIFA Disciplinary Committee for its consideration
and decision.
6.
A restriction of four months on his eligibility to play in official matches is imposed
on the player A. This sanction shall take effect as of the start of the next season of
the player’s club following the notification of the present decision.
7.
Any further request filed by the club S is rejected.
*****
11/12
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
12/12