Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 April 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (The Netherlands), member
David Mayebi (Cameroon), member
Philippe Diallo (France), member
Zola Majavu (South Africa), member
on the claim presented by the club
I,
as Claimant
against the player
S,
and the club
B,
as Respondents
regarding a contractual dispute arisen on the basis of an
employment contract signed between the Claimant and the player
I.
Facts of the case
1.
On 18 January 2004, the player S (hereafter: the player), born on 20 May 1981 and the
club I (hereafter: the Claimant) signed an employment contract valid until 31 December
2004. The said contract established that the Claimant would pay to the player a monthly
salary amounting to 350. In addition, the aforementioned parties signed an annex to
the employment contract agreeing that, on the one hand, in case of an unilateral
termination of the contract a penalty fee amounting to 450,000 would be payable. On
the other hand, the Claimant agreed to liberate the player to another club by payment
of 30% of the value of the negotiation. Finally, the annex stipulates that an
extension/renewal is possible. Both the contract and the annex dated 30 January 2004
were registered with the Football Federation B.
2.
Moreover, the Claimant provided a copy of an amendment to the above-mentioned
employment contract according to which on 1 July 2004 the parties, apparently, agreed
that the employment contract would be valid until 18 January 2009 and that the player
would receive a monthly salary amounting to 2,500. Equally, also the annex was,
apparently, amended: the penalty fee due in case of unilateral termination would be
3,000,000 and if the non-compliance is caused by an international transfer, the fine
would amount to USD 1,500,000. According to clause 7 of the amendment the Claimant
will pay the amount of 1,500,000 on 26 July 2004 to the player as payment for 100% of
his “federative rights”.
3.
According to the files of the Football Federation B, provided by the Claimant, the
employment contract signed on 18 January 2004 and its annex regarding the penalty
fee amounting 450,000 were registered with the Football Federation B on 30 January
2004. However, not the alleged amendments dated 1 July 2004.
4.
On 12 August 2004, the termination of the employment contract (released by order) and
the international transfer of the player to T were registered by the Football Federation
B. On 31 August 2004, the Football Federation B registered that the labour court
granted the preliminary order authorizing the transfer of the player to T. The final entry
in the file is dated 9 September 2004 stating that the labour court released the player
from his employment contract. No further entries are contained in the register of the
Football Federation B.
5.
The player and the club B (hereafter: the club) signed an employment contract valid as
from 27 July 2004 until 31 May 2008, according to which the player would receive a
signing-on fee of USD 120,000, for the season 2004/2005 the amount of USD 140,000,
for the season 2005/2006 the amount of USD 200,000, for the season 2006/2007 the
amount of USD 288,000 and for the season 2007/2008 the amount of USD 345,000.
6.
On 11 July 2005, FIFA received the complaint of the Claimant. Basically, the Claimant
explained that upon receiving an offer from the club B on 15 June 2004, the player went
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to T by the end of June 2004. However, the player returned to B and, apparently, the
Claimant was informed by phone that the club B was no longer interested in the
player’s services. Yet, apparently the player left without notice on 24 July 2004.
7.
As a result, the Claimant requests compensation for breach of contract from the player
in the amount of USD 1,500,000 as apparently agreed in the amendment dated 1 July
2004, plus 5% interest as from the date a decision is passed, or alternatively in the
amount of USD 1,000,000, plus 5% interest as from the date a decision is passed. The
Claimant calculated the claimed amount as follows: offer made by the club B in the
amount of USD 300,000, plus 40% of any future transfer, plus an additional 40% as
compensation. Furthermore, the Claimant requests that the player should be sanctioned
for six months. Finally, the Claimant requests compensation in the same amount payable
by the club B, being the latter jointly liable for such payment. Furthermore, the club B
shall also be sanctioned.
8.
On 23 February 2006, the club B vehemently contested the Claimant’s claim arguing that
there is no legally binding contractual relationship between both clubs. Moreover, the
club B explained that it signed an employment contract with the player only after
having been informed that the player had terminated the employment contract signed
with the Claimant by means of the B labour courts. In addition, the club B emphasised
that it has always acted in accordance with the FIFA Regulations for the Status and
Transfer of Players since, at the time it started negotiations with the player, the latter’s
contract with the Claimant was to expire within 6 months.
9.
Furthermore, the club B emphasised that the player had told them that the alleged
extension of the contract until 2009 is not valid since his signature was fake. Finally, the
club B emphasised that the relevant International Transfer Certificate (ITC) was issued by
the Football Federation B, which would not have been the case if there would have
been any irregularity with the player’s statutes.
10.
The T Football Federation provided a copy of the relevant ITC issued by the Football
Federation B on 29 July 2004 based on which it registered the player concerned for the
club B.
11.
On 27 March 2006, the player vehemently contested the claim of the Claimant. First of
all, the player emphasised that his signature on the amendment provided by the
Claimant was fake. Moreover, the player contested FIFA’s jurisdiction on the present
affair, arguing that the present dispute involved a club and a player from B and that the
matter had already been dealt with by the B labour court. In this respect, the player
enclosed a copy of a preliminary decision of the B labour court dated 10 August 2004, by
means of which it was concluded that the player can be transferred to T.
12.
Moreover, the player explained that he had a valid contract with the Claimant until 31
December 2004, which he terminated by means of the B labour court. Based on the said
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contract he was entitled to unilaterally terminate the contract by paying 30% of USD
55,000, i.e. USD 18,000, which he apparently has done.
13.
Finally, the player stressed that his signature was fake on the amendment and that also
the labour court established that the signature on the annex was different from the one
on all other provided documents.
14.
On 21 November 2006, the Dispute Resolution Chamber decided that the claim of the
Claimant was not admissible, since based on the documents at disposal it seemed that
the Claimant had already lodged a claim in front of a B court. The Court of Arbitration
for Sports (CAS) upheld the appeal lodged by the Claimant and referred the matter back
to FIFA on 10 March 2008. In particular, the CAS established that the decision previously
passed by the B court was in connection with the Claimant’s request for interim
measures and thus, without prejudice to the decision as to the substance of the present
matter.
15.
In October 2008, the Claimant again contacted FIFA asking for compensation for breach
of contract amounting to USD 2,205,000, plus costs. The Claimant calculated the
aforementioned amount as follows: the amount of USD 1,500,000, plus 47% of such
amount as a further compensation for the damage incurred due to the loss of currency
exchange.
16.
Alternatively, the Claimant claimed compensation amounting to USD 1,500,000,
calculated as follows: the amount stipulated as penalty clause in the amendment of the
contract dated 1 July 2004, plus 5% interest as from 24 July 2006.
17.
Moreover, the Claimant emphasised that in accordance with the employment contract
signed on 18 January 2004, it had agreed to liberate the player to another club by
payment of 30% of the value of the negotiation. Thus, and since according to the
Claimant, the value of the 4 year contract signed between the player and the club B
amounts to USD 1,093,000, it was entitled to receive 30% of such amount, i.e. USD
327,900, plus 47% of this amount, due to the currency loss, plus the amount stipulated
in the penalty clause amounting to 450,000.
18.
Alternatively to the calculation with the loss related to the currency exchange, the
Claimant requests that interest of 5% per annum should apply on both the amounts of
USD 327,900 and 450,000 as from 24 July 2006.
19.
Finally, whatever the amount to be determined, the Claimant requests that the club B
shall be held jointly and severally responsible for the payment.
20.
On 31 October 2008, the TFF confirmed that the player was registered with its affiliated
club A.
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21.
On 17 December 2008, the club B referred to all its previous positions and once again
emphasised that, by the time it signed the player, it was informed that he was a “free
player”. Yet, and in case a compensation would be awarded by the Dispute Resolution
Chamber, it should be considered that the player’s salary with the Claimant amounted
to USD 350.
22.
Although FIFA contacted the player several timed through the TFF, the player never
provided his position with regard to the claim of the Claimant lodged in October 2008.
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 initially
submitted to FIFA on 11 July 2005. Consequently, the previous 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. 21 of Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber, edition 2008).
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 shall adjudicate on disputes between clubs and players in relation
to the maintenance of contractual stability if there has been a request for the issuance
of an ITC and if there is a claim from an interested party in relation to such ITC request,
in particular regarding its issuance, sporting sanctions or compensation for breach of
contract.
3.
In this context, the Chamber deemed it appropriate to emphasise that as established by
CAS the decision previously passed by the B court was in connection with the Claimant’s
request for interim measures and thus, without prejudice to the decision as to the
substance of the present matter. In view of the foregoing, CAS had referred the matter
back to FIFA in order to render a decision as to the substance of the contractual dispute
arisen between the Claimant and the player.
4.
In continuation, 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 11 July 2005, the previous version of
the regulations (edition 2005; hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
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5.
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 that, on the one hand, the Claimant deems that the
player should be liable to pay compensation for breach of contract in the amount of
USD 2,205,000, or alternatively, the amount of USD 1,500,000, or the amount of USD
327,900, plus 47% of this amount, due to the currency loss, plus the amount of 450,000.
Alternatively, to the calculation with the loss related to the currency exchange, the
Claimant requests that interest of 5% per annum should apply on both the amounts
of USD 327,900 and 450,000 as from 24 July 2006.
6.
On the other hand, the Chamber noted that the player did not provide any statement
with regard to the aforementioned requests of the Claimant, although having been
invited to do so. Also the Chamber noted that the club B referred to all its previous
positions and once again emphasized that, by the time it signed the player, it was
informed that he was a “free player”. Yet, and in case a compensation would be
awarded, the club B deemed that it should be considered that the player’s salary with
the Claimant club amounted to USD 350.
7.
In continuation, the Chamber took due note that it is not contested by the parties that
on 18 January 2004, the player and the Claimant signed an employment contract valid
from the date of the signature until 31 December 2004 and that the player left on 24
July 2004, thus prior to the expiry of the said employment contract.
8.
However, the Chamber noted that the Claimant provided a copy of an alleged
amendment to the above-mentioned employment contract according to which on 1 July
2004 the parties, apparently, agreed that the employment relationship would be
extended and therefore be valid until 18 January 2009. Moreover also the annex was,
apparently, amended, in the sense that the penalty fee due in case of unilateral
termination would
be 3,000,000 and if the non-compliance is caused by an
international transfer, the fine would amount to USD 1,500,000.
9.
In this respect, the Chamber took due the player vehemently contested the validity of
this second contract and its annex and explained that his signature had been falsified.
10.
In this respect, the Chamber emphasized that as general rule it is not the competent
body to decide upon matters of criminal law, such as the alleged falsification of a
signature or a document, but that such affairs rather fall into the jurisdiction of the
competent national criminal authority.
11.
Yet, according to the documents received, the Chamber noted that the player’s
signatures on the original copy of the second contract and its annex are completely
different from the signatures contained in the contract signed on 18 January 2004 and
contained in the submissions of the player.
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12.
In view of the all of the above, and based on the documentation currently at its
disposal, the Chamber unanimously came to the conclusion that, unless proven
otherwise by the competent national criminal authority, for the moment, the second
employment contract and its annex cannot be considered. In particular, the Chamber
emphasised that the Claimant was not able to prove that the player had indeed signed
the second employment contract (cf. art. 12 par. 3 of the Procedural Rules). As a result,
the Chamber concluded that the contract to take into account for the present dispute is
the one signed on 18 January 2004 and valid until 31 December 2004.
13.
In continuation, the Chamber turned its attention to the questions as to whether the
player had a just cause to prematurely leave the Claimant. In this respect, the Chamber
noted that the player did not provide any reason why he left, but only explained,
during the first procedure pertaining to the decision of the Dispute Resolution
Chamber taken on 21 November 2006, that based on the contract signed on 18 January
2004 he was entitled to unilaterally terminate the contract by paying 30% of USD
55,000, i.e. USD 18,000. In this, context, the Chamber emphasised that the player neither
provided any documentary evidence to corroborate the aforementioned nor provided
any reply as to Claimant’s claim of October 2008.
14.
Moreover, the Chamber once again emphasised that the decision previously passed by
the B court was in connection with the Claimant’s request for interim measures and
thus, without prejudice to the present decision as to the substance of the present
matter.
15.
In view of the above, the Chamber concluded that the player has breached the contract
signed in January 2004 without just cause and should therefore be held liable to pay
compensation to the Claimant.
16.
In this connection, the Chamber referred to art. 17 par. 1 of the Regulations, and
emphasised that, first of all, it had to clarify as to whether the relevant employment
contract signed in January 2004 contains a provision by which the parties had
beforehand agreed upon an amount of compensation for breach of contract.
17.
Thus, the Chamber took into account that in addition to the employment contract
signed in January 2004, the parties signed an annex agreeing that in case of an
unilateral termination of the contract a penalty fee amounting to 450,000 would be
payable.
18.
Moreover, the Chamber also noted that the above-mentioned contract, valid as from 18
January 2004 until 31 December 2004, i.e. for one year, established that the Claimant
would pay to the player a monthly salary amounting to 350. Consequently, and
considering that the total remuneration due to the player for one year amounted to
4,200, the Chamber established that the penalty fee amounting to 450,000 corresponds
to 107 years of salary for the player.
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19.
As a result, the Chamber unanimously concluded that such an exorbitant amount
provided as penalty fee is excessive and is not acceptable. In this respect, the Chamber
deemed appropriate to recall that also CAS had confirmed the excessive and abusive
nature of such a clause.
20.
As a consequence, the members of the Chamber were of the opinion that, under such
circumstances, the penalty clause in question appears to be completely disproportionate
and that therefore, the deciding body had a legitimate competence to asses the
relevant amount payable by the player as compensation, taking into account the
particularities of the specific case.
21.
In continuation, the Chamber considered the documentation and information at
disposal, in particular, the employment contract the player signed with the Claimant
and the employment contract the player signed with the club B, in order to gather
indications as to the economic value attributed to the player by both his former and his
new club.
22.
Equally, the Chamber took into account that by the time the player left the Claimant,
the period of time remaining on the contract signed with the latter corresponds to 5
months. Moreover, the Chamber also took into account that the club B signed the
employment contract with the player after the B labour court having granted the
preliminary order authorizing the transfer of the player to T and releasing the player
from his employment contract with the Claimant.
23.
Thus, the Chamber concluded that the relevant compensation should be calculated
based on the average monthly remuneration agreed by the player with the Claimant
and the T club as well as considering the period of time remaining of the contract
signed between the player and the Claimant.
24.
In this context, the Chamber noted that the player was entitled to receive under his
contract with the Claimant a monthly salary amounting to 350 (equivalent to
approximately USD 164). Moreover, and turning its attention to the financial terms of
the employment contract signed between the player and the club B, the Chamber
acknowledged that according to the said contract signed for a duration of four years
the player was entitled to receive a signing-on fee of USD 120,000, which on a monthly
basis corresponds to USD 2,500 (USD 120,000 divided by 48 months). Equally, the
contract in question provided for the amount of USD 140,000 for the season 2004/2005
payable during a period of nine months, i.e. the amount of USD 15,555 monthly. Thus,
the Chamber established that the player’s monthly remuneration under the new
contract with the club B during the period of time between August 2004 and December
2004 corresponds to the amount of USD 18,055.
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25.
Considering the above, the Chamber concluded that the average monthly remuneration
between the player’s monthly salary under the contract with the Claimant, i.e. USD 164,
and the player’s monthly salary under the contract with the club B, i.e. USD 18,055,
amounts to USD 9,109.
26.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the player must pay the
amount of USD 45,545 to the Claimant as compensation for breach of contract.
Furthermore, the Chamber decided that in accordance with art. 17 par. 2 of the
Regulations, the club B is jointly and severally liable for the payment of this amount of
compensation.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the club I, is partially accepted.
2.
The player S has to pay the amount of USD 45,545 to the Claimant, the club I, within 30
days of notification of the present decision.
3.
Any further request filed by the Claimant, the club I, is rejected.
4.
The club, B, is jointly and severally liable for the payment
amount (cf. point III.2.).
5.
The Claimant, the club I, is directed to inform the player S and the club B 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.
If this amount is not paid within the aforementioned time limit, an interest rate of 5%
per annum will apply as of the expiry of the said time limit and the matter will be
submitted, upon request, to the FIFA Disciplinary Committee for its consideration and
decision.
*
*
of the aforementioned
*
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
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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
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