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 (Netherlands), member
David Mayebi (Cameroon), member
Philippe Diallo (France), member
Zola Majavu (South Africa), member
on the claim presented by
the club, FC X, country A,
represented by Mr O
as “Claimant”
against
the player, Z, country A,
represented by Mr P
and
the club, FC Y, country C,
represented by Mr Q
as “Respondents”
regarding breach of contract and inducement to breach of contract.
I.
Facts of the case
1.
On 1 January 2007, the player Z (d.o.b. 1973; hereinafter: the player) and the club FC X
from country A signed an employment contract valid until the end of the season
2009/2010. During the remainder of the first season (2006/2007), the player was entitled to
receive an amount of AAA 90,000. During the second season he was entitled to receive
AAA 720,000, i.e. an advance payment of AAA 180,000, six instalments of AAA 30,000 each
due on 30 August 2007, 30 October 2007, 30 December 2007, 28 February 2008, 30 April
2008 and 30 June 2008, respectively. Moreover, the contract states that the “remaining
50% of the annual contract is distributed according to the footballer’s participation and
according to the financial regulations of the club”. Furthermore, according to the said
contract, the player was entitled to receive AAA 720,000 for the third and fourth season,
respectively.
2.
The player and the club FC Y from country C concluded an employment contract dated 15
February 2008 stipulating a validity period as from this date until 30 June 2011. According
to this contract, the player is entitled to receive an annual amount of CCC 240,000, payable
in 12 monthly instalments.
3.
On 11 April 2008, the Single Judge of the Players’ Status Committee authorised the
Football Association of C, upon the latter’s respective request, to provisionally register the
player with its affiliated club FC Y with immediate effect.
4.
On 12 June 2008, FC X turned to FIFA and lodged a claim against the player and FC Y for
breach of contract and inducement to breach of contract, respectively. FC X requested that
the player and FC Y be declared jointly and severally liable to pay compensation for breach
of contract in the amount of UUU 2,000,000 to FC X, and that sporting sanctions in
accordance with art. 17 paras. 3 and 4 of the Regulations on the Status and Transfer of
Players (hereinafter: the Regulations) be imposed on them, i.e. a restriction on the player’s
participation in official matches and a ban on FC Y from registering new players during
two registration periods.
5.
In this respect, FC X explained that, on 14 February 2008, it had held a meeting with
representatives of FC Y in A, during the course of which FC X made it clear that it had no
interest in a transfer of the player to FC Y or any other club. In this respect, FC X insisted
that it never agreed to negotiations between FC Y and the player, let alone to the transfer
of the player. Nevertheless, according to FC X, the following day the player and FC Y signed
an employment contract without the knowledge or permission of FC X. In fact, FC X had
only learned that the player and FC Y had concluded an employment contract during the
course of the procedure regarding the provisional registration of the player for FC Y before
FIFA. After having taken part in a championship match for FC X on 20 February 2008, the
player disappeared and travelled to C without the authorisation of FC X, but resumed
training with FC X b a couple of days later. Finally, on 29 March 2008, the player did not
FC X / Player Z / FC Y
2
appear to FC X’s training sessions anymore, and FC X learned afterwards that the player
had joined FC Y.
6.
On account of the foregoing, FC X concluded that, by signing a contract with FC Y, the
player had breached his existing contract with FC X without just cause during the protected
period. FC X insisted that it had explicitly informed the player upon FC Y’s representatives’
visit to A that his transfer was not feasible as FC X was competing in national and
international championships and could not renounce his services. Furthermore, according
to FC X, the player had been regularly and duly remunerated by FC X until 26 March 2008,
even during the first time he travelled to C.
7.
In this context, FC X specified that the player had been induced to breach his contract by FC
Y, since FC Y never actually made any serious offer to FC X for the player. FC X held that, as
a club experienced in international transfers, FC Y was well aware that it had to receive the
previous written authorisation of FC X in order to conduct negotiations with the player,
that it had to sign a transfer agreement with FC X and that the player and FC X had to
terminate their employment contract in order for the player to be able to join FC Y.
However, none of these steps had been taken in the present case.
8.
FC X also explained that the player had been the regular first goalkeeper of FC X as well as
the best goalkeeper of the 2008 Continental Championship and was very much appreciated
by FC X’s fans. In view of these circumstances, according to FC X, the allegation of FC Y that
FC X had agreed to the transfer of the player to a club of his choice is out of touch with
reality, also in view of the fact that the relevant registration period in A closed on 31
January 2008 and it was therefore not possible to register a replacement for the player.
9.
With regard to the compensation for breach of contract which it claimed, FC X emphasised
that its employment contract with the player still had two and a half seasons to run, the
difficulty and costs to replace a goalkeeper of the player’s calibre, the lost opportunity to
negotiate a transfer of the player as well as the reproachable stance of both the player and
FC Y.
10.
On 15 July 2008, in response to FC X’s claim, the player informed FIFA that he had been
promised by FC X on various occasions that he could continue his career elsewhere and that
in February 2008, after FC Y had expressed its interest in him, a meeting between the
parties concerned was organised. On occasion of this meeting, the two clubs allegedly
came to an agreement regarding the transfer, leaving the financial conditions to be
discussed at a later stage. This was due to the fact that the player had to be registered
already the next day, which was the last day of the registration period fixed by the Football
Association of C. Consequently, according to the player, during this meeting FC X explicitly
allowed him to conclude an employment contract with FC Y and to travel to C on 21
February 2008. On 22 and 25 February 2008, the player, who was surprised that his former
club had not approached FC Y in the meantime with regard to his transfer, contacted FC X
FC X / Player Z / FC Y
3
in order to remind FC X of its promise and confirmed the termination of his contractual
relationship with it.
11.
On account of the above, the player affirmed that his contract with FC X had been
terminated by mutual agreement under the terms of art. 13 of the Regulations on occasion
of the tripartite meeting on 14 February 2008. In this regard, the player defended that the
fact that the two clubs involved did not come to an agreement regarding his transfer did
not change anything with regard to the fact that the employment contract between
himself and FC X had been duly terminated. Therefore, the player requested that FC X’s
claim be rejected and that FC X be ordered to bear the costs incurred with the present
proceedings.
12.
On 15 July 2008, FC Y first of all held that the present claim was directed against “FC Y”
which is merely the designation of a football team of the top league of C and lacks its own
legal existence and, consequently, standing to be sued in the present case. FC Y contended
that only the company “V” has standing to be sued in the present case, but has not been
called as a respondent. Consequently, according to FC Y, “FC Y” has wrongly been called as
a respondent in the present matter, due to which FC X’s claim is inadmissible.
13.
In any event, FC Y held that FC X’s claim is unfounded and insisted that, on occasion of
their meeting on 14 February 2008, FC X explicitly released the player from his contract
with FC X. In this respect, FC Y enclosed statements of the player, the General Director of V
and Mr F who had apparently acted as a translator during the meeting between FC Y and
FC X and, according to the employment contract between FC Y and the player, assisted the
latter in concluding the said contract. According to FC Y, in view of the explicit
authorisation of FC X, there was obviously no unilateral breach of contract on the part of
the player and, consequently, no inducement to breach of contract on the part of FC Y. In
this regard, FC Y raised the question why its representatives would have travelled to A to
meet representatives of FC X in its offices in the presence of the player if it was not to
discuss the transfer of the latter. FC Y also claimed having informed FC X in writing of the
conclusion of its employment contract with the player on 15 February 2008. The written
response of FC X opposing the transfer only occurred 10 days later. In this regard, FC Y held
that, if the situation had really corresponded to FC X’s explanations, FC X would have
reacted immediately to its letter and not only after 10 days had elapsed.
14.
On account of all of the above, FC Y requested that all of FC X’s claims be rejected. In any
event, FC Y added that, on the one hand, the amount claimed by FC X lacked any
justification whatsoever and, on the other hand, that a ban on registering players possibly
imposed on FC Y would violate antitrust law of C. Finally, FC Y requested that FC X be
ordered to pay any procedural costs in connection with the present proceedings as well as
its legal costs.
FC X / Player Z / FC Y
4
15.
In reply to the respondents’ statements, FC X first of all contested that FC Y lacked standing
to be sued in the present matter. Furthermore, FC X explained that FC Y’s representatives
travelled to A on 14 February 2008 for a meeting with FC X since they were interested in
the player. However, on that occasion FC X allegedly made it clear that it had no intention
at all to transfer the player. In this regard, FC X lent emphasis to the fact that the
Respondents, carrying the respective burden of proof, had not presented any evidence
whatsoever demonstrating that FC X had authorised the transfer of the player to FC Y, an
allegation which FC X strongly contested. Moreover, FC X held that the declarations made
by Mr F did not correspond to reality, and that it reserved its right to lodge a claim against
him for perjury. In this respect, FC X added that it would be absurd to assume that FC X and
FC Y had agreed to the transfer of the player but left the negotiations of the financial
conditions of the transfer to a later stage. Thus, FC X adhered to its claim.
16.
In his final position, the player reiterated his and FC Y’s previous arguments. Furthermore,
he held that, as he had presented witnesses in support of his allegation that he and FC X
had mutually terminated their employment contract, it was now up to FC X to refute this
fact.
17.
In its final position, FC Y requested FIFA to first issue a separate decision with regard to FC
Y’s standing to be sued. Furthermore, FC Y proposed to suspend the present proceedings
until any procedures for perjury against the witness Mr F, the initiation of which had been
announced by FC X, had come to a conclusion.
18.
Upon FIFA’s request, FC X informed FIFA that, during the period from 1 July 2007 until 31
March 2008, the player had received AAA 1,193,560 from the club and submitted
documentation in this regard, along with corresponding translations into an official FIFA
language.
19.
On 1 April 2009, the player and FC Y were granted a time limit of six days in order to
submit comments with regard to the supplementary documentation provided by FC X. On 3
April 2009, the legal representative of the player requested an extension of the relevant
time limit until 30 April 2009, since the player was allegedly in A. FIFA granted the player as
well as FC Y, upon the club’s respective request, an extension of the time limit until 14 April
2009. On 8 April 2009, the player’s legal representative insisted in an extension of the time
limit until 30 April 2009. On 14 April 2009, FC Y requested to be granted the same
extension of the time limit as the player. On 14 April 2009, the parties were informed that
it would be up to the Dispute Resolution Chamber to decide whether an additional
extension of the relevant time limit would be granted or whether a decision would be
taken as to the substance of the matter.
FC X / Player Z / FC Y
5
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 12 June 2008. Consequently, the 2005 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(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. a of the
Regulations on the Status and Transfer of Players (edition 2008) the Dispute Resolution
Chamber is competent to adjudicate on disputes between clubs and players in relation to
the maintenance of contractual stability if there has been an ITC request and if there is a
claim from an interested party in relation to such ITC request, in particular regarding its
issuance, regarding sporting sanctions or regarding compensation for breach of contract.
3.
At this stage, the Dispute Resolution Chamber held that it had to consider and decide upon
FC Y’s objection as to its quality as a party in the present proceedings. In this respect, the
Chamber recalled that, according to FC Y, “FC Y” is merely the designation of a football
team in the top league of C and lacks its own legal existence and, consequently, standing
to be sued in the present case. Accordingly, only the company “V” would have standing to
be sued in relation to the matter at hand, but has not been called as a respondent.
Consequently, according to FC Y, “FC Y” has wrongly been called as a respondent in the
present matter, due to which FC X’s claim is inadmissible.
4.
In this regard, the members of the Chamber first of all referred to art. 2 para. 2 and art. 5
para. 1 of the Regulations on the Status and Transfer of Players, both of which are binding
at national level by virtue of art. 1 para. 3 lit. a) of the said Regulations, which require that
a professional player has, inter alia, a written contract with a club and is registered at an
association to play for a club. In respect of players which are not registered with a club, art.
5 para. 1 of the mentioned Regulations concludes that they are not eligible to participate
in organised football. In the present case regarding a dispute within organised football
under the auspices of FIFA, the Dispute Resolution Chamber found it uncontested that the
club for which the player has been registered with the Football Association of C (upon the
latter’s explicit request to be able to register the player for its affiliated club “FC Y”) and
for which he has been participating in organised football ever since is the club FC Y and not
the company V. In this respect, the Dispute Resolution Chamber emphasised that the
registration of a player cannot be transferred at a club’s discretion to another entity which
is not a club. Furthermore, the Dispute Resolution Chamber held that if the operating and
administration of a club is handled by another entity, such as appears to be the case for FC
Y, this remains without relevance for the purpose and application of the Regulations. In
addition, the Dispute Resolution Chamber lent emphasis to the fact that the player’s new
employment contract names “the club of the Football League of C: FC Y – V” (emphasis
FC X / Player Z / FC Y
6
added) as his counterparty. On account of these circumstances, the members of the
Chamber concluded that the designation of “FC Y” as the defending club in the present
matter is correct and that the respective argumentation of the FC Y in order to avoid its
participation in the present proceedings must be rejected.
5.
As a consequence of all of the above, the Dispute Resolution Chamber is the competent
body to decide on the present litigation regarding a dispute relating to the maintenance of
contractual stability in which an ITC request was made and regarding compensation for
breach of contract.
6.
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 12 June 2008, the current version of the
regulations (edition 2008; hereinafter: Regulations) is applicable to the matter at hand as
to the substance.
7.
In continuation, before being able to enter into the substance of the matter, the Chamber
held that the Respondents’ request for an extension of the time limit granted until 30 April
2009 in order for them to present their comments to a supplementary submission filed by
FC X upon FIFA’s respective request had to be addressed.
8.
In this respect, the Dispute Resolution Chamber summarised that the player and FC Y had
initially been granted a time limit of six days to express themselves on a submission
consisting of 15 pages including the respective translations. Upon the Respondents’ request
for an extension of the time limit, they had been granted an extension of seven additional
days. The legal representative of the player had however insisted in the extension of the
time limit until 30 April 2009 and motivated this request with the alleged departure of the
player to A.
9.
In this regard, the Dispute Resolution Chamber first of all held that the Respondents had
been granted ample opportunity to express themselves with regard to FC X’s submission.
Furthermore, the Chamber considered that even if the player had been in A at the relevant
point of time, an extension of the time limit until 30 April 2009 would have been excessive,
taking into account the very limited volume of FC X’s supplementary submission and the
fact that an exchange of ideas and documents between C and A within a time frame of
approximately two weeks should be considered feasible in view of today’s means of
communication. However, the members of the Chamber noted that, in spite of not having
been granted an additional extension and having been informed that the Dispute
Resolution Chamber may proceed to the resolution of the dispute at the present meeting,
the Respondents had omitted to submit their comments to FC X’s last submission.
FC X / Player Z / FC Y
7
10.
In any event, upon study of the relevant additional documents presented by FC X, the
Dispute Resolution Chamber considered that they could, without any of the parties having
to suffer a disadvantage therefrom, be left aside for the purpose of the consideration and
decision of the present matter. As a consequence, the Dispute Resolution Chamber decided
to enter into the substance of the matter and render a decision at the present meeting.
11.
Consequently, entering into the substance of the case at stake, the members present at the
meeting first of all recalled that on 1 January 2007, the player and FC X had entered into an
employment contract set to expire at the end of the season 2009/2010.
12.
In continuation, the Chamber acknowledged that prior to the expiry of the
aforementioned labour agreement, i.e. on 15 February 2008, the player and FC Y concluded
an employment contract stipulating a validity period as from the date of signature until 30
June 2011.
13.
This course of events was uncontested by the parties, as well as the fact that on 14 February
2008, FC X, the player as well as FC Y had gathered for a meeting in A. The members of the
Chamber acknowledged that it is at this point that the respective descriptions of the events
by the parties become divergent to the extent that they are diametrically opposed.
14.
In this regard, the Chamber noted that, on the one hand, FC X maintained having made it
clear at the relevant meeting that it had no interest in a transfer of the player and that it
had never even agreed to negotiations between FC Y and the player.
15.
On the other hand, the members present at the meeting took due note that, according to
the player, he had been promised by FC X that he could be transferred to a club elsewhere.
Consequently, on occasion of the tripartite meeting on 14 February 2008, the two clubs had
allegedly come to an agreement regarding his release, leaving the financial conditions to
be discussed at a later stage, since the player had to be registered for FC Y immediately. In
this context, the player and FC Y insisted that his employment agreement with FC X had
been terminated by both contractual parties by mutual agreement under the terms of art.
13 of the Regulations. In view of this circumstance, there had been no unilateral breach on
the part of the player and, consequently, no inducement to breach of contract on the part
of FC Y.
16.
Having taken due note of the above, the Chamber referred to art. 12 para. 3 of the
Procedural Rules, according to which any party deriving a right from an alleged fact shall
carry the respective burden of proof.
17.
Applied to the matter at stake, the members of the Dispute Resolution Chamber held that
it could not be up to FC X to prove that it had not agreed to release the player to render
his services for FC Y. The competent deciding body emphasised that it was uncontested that
there had been a valid contractual relationship between the player and FC X which, unless
FC X / Player Z / FC Y
8
other arrangements were made by the contractual parties, was set to expire only at the end
of the season 2009/2010.
18.
In this respect, as the player and FC Y argued that they had been entitled to enter into a
contractual relationship on the basis of FC X’s alleged respective consent, the Chamber held
that it was rather up to the Respondents to prove their allegation that FC X had orally
agreed with the player on a mutual termination of their employment contract. This also in
view of the fact that a purely verbal agreement for the transfer of an established
professional, leaving the financial terms to be discussed at a later stage, was not likely to be
assumed, especially not in the case of a transfer of a player of such format as the player Z.
19.
In this context, the Dispute Resolution Chamber held that, on the one hand, the evidence
presented by the Respondents essentially consisted of three declarations, issued by the
player himself, an employee of V and Mr F who, according to the employment contract
between FC Y and the player, had assisted the latter with its conclusion. In this regard, the
Dispute Resolution Chamber held that the impartiality of the individuals which had
rendered the relevant declarations at least had to be questioned and that, therefore, the
declarations could not serve as objective evidence for FC X’s alleged consent to the player’s
release of his contractual obligations.
20.
Furthermore, FC Y had held that FC X had not reacted immediately to its letter of 15
February 2008 informing FC X of the conclusion of the employment contract between the
player and FC Y, but only after ten days had elapsed, allegedly proving that FC X had
indeed agreed to the release of the player. In this regard, the Chamber held that the
reasons for such delay could be manifold, but that in any event neither this circumstance
nor the mere fact that a meeting had indeed taken place in A between the player, FC X and
FC Y were in any way apt to prove beyond doubt that FC X had indeed verbally agreed to
release the player from his contractual obligations.
21.
As a consequence, and having assured themselves that the player and FC Y had not
presented any other evidence suitable to corroborate their allegation that FC X had orally
agreed to terminate its employment contract with the player, the members of the Dispute
Resolution Chamber concluded that the respective argumentation of the Respondents
could not be upheld.
22.
Furthermore, in lack of any other defense which could possibly justify the conclusion of an
employment contract between the player and FC Y during the course of the labour
relationship between the player and FC X, the Dispute Resolution Chamber established
that, by entering into a labour contract with FC Y, the player had breached his employment
contract with FC X without just cause.
23.
In this respect, the members of the Chamber referred to item 7. of the “Definitions” section
of the Regulations, which stipulates inter alia that the protected period “shall last for two
entire seasons or two years, whichever comes first, following the entry into force of a
FC X / Player Z / FC Y
9
contract, where such contract is concluded after the 28th birthday of the professional”. In
this regard, the Dispute Resolution Chamber pointed out that the player had been 33 years
of age when he signed his employment contract with FC X on 1 January 2007, entailing
that the breach of the relevant contract had occurred within the applicable protected
period.
24.
Having stated the above, the Chamber turned its attention to the question of the
consequences of such breach of contract during the protected period committed by the
player.
25.
In doing so, the Dispute Resolution Chamber first of all established that, in accordance with
art. 17 para. 1 of the Regulations, the player is liable to pay compensation to FC X.
Furthermore, in accordance with the unambiguous contents of article 17 para. 2 of the
Regulations, the Chamber established that the player’s new club, i.e. FC Y, shall be jointly
and severally liable for the payment of compensation. In this respect, the Chamber was
eager to point out that the joint liability of the player’s new club is independent from the
question as to whether the new club has committed an inducement to contractual breach.
This conclusion is in line with the well-established jurisprudence of the Chamber that was
repeatedly confirmed by the Court of Arbitration for Sport (CAS). Notwithstanding the
aforementioned, the Chamber recalled that according to article 17 para. 4 sent. 2 of the
Regulations, it shall be presumed, unless established to the contrary, that any club signing a
Professional who has terminated his contract without just cause has induced that
Professional to commit a breach. In any event, the Chamber determined that it would
attend to the question of the possible inducement to breach of contract by FC Y at a later
stage of its deliberations, i.e. after having discussed the issue of the compensation due to
FC X.
26.
Prior to proceeding to the calculation of the amount of compensation, the Chamber placed
emphasis on the primacy of the principle of the maintenance of contractual stability, which
represents the backbone of the agreement between FIFA/UEFA and the European
Commission signed in March 2001. This agreement and its pillars represent the core of the
former (editions 2001 and 2005) as well as of the 2008 version of the Regulations, which all
stakeholders – including player and club representatives – agreed upon in 2001.
27.
Above all, the Chamber was eager to point out that the measures provided for by the
above Regulations concerning in particular compensation for breach of contract without
just cause serve as a deterrent discouraging the early termination of employment contracts
by either contractual party and that a lack of a firm response by the competent deciding
authorities would represent an inappropriate example towards all the football actors.
28.
In this respect, awarding compensation in favour of the damaged party (either the player
or the club, as the case may be) has proven to be an efficient means and has always found a
widespread acceptance since it guarantees that the fundamental principle of the respect of
the contracts is duly taken care of.
FC X / Player Z / FC Y
10
29.
Above all, it was emphasised that the criteria contained in article 17 of the Regulations are
applied with the principle of reciprocity for clubs and players, signifying that both clubs
and professionals who are seen to have committed a breach of contract without just cause
will in all cases be subject to pay compensation and, under specific circumstances, also
subject to the imposition of sporting sanctions.
30.
Having stated the above, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so, the
members of the Chamber firstly recapitulated that, in accordance with art. 17 para. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and unless
otherwise provided for in the contract at the basis of the dispute, with due consideration
for the law of the country concerned, the specificity of sport and further objective criteria,
including in particular the remuneration and other benefits due to the player under the
existing contract and/or the new contract, the time remaining on the existing contract up
to a maximum of five years as well as the fees and expenses paid or incurred by the former
club (amortised over the term of the contract) and whether the contractual breach falls
within a protected period. The Dispute Resolution Chamber recalled that the list of
objective criteria is not exhaustive and that the broad scope of criteria indicated tends to
ensure that a just and fair amount of compensation is awarded to the prejudiced party.
31.
In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the relevant employment contract between the player and FC X contains a
provision by which the parties had beforehand agreed upon an amount of compensation
for breach of contract. Upon careful examination of the employment contract concluded
between the player and FC X, the members of the Chamber assured themselves that this
was not the case in the matter at stake.
32.
As a consequence, the members of the Chamber determined that the prejudice suffered by
FC X in the present matter had to be assessed in application of the other parameters set
out in art. 17 para. 1 of the Regulations. In this regard, the Dispute Resolution Chamber
emphasised beforehand that each request for compensation for contractual breach has to
be assessed by the Chamber on a case-by-case basis taking into account all specific
circumstances of the respective matter, as well as the Chamber’s specific knowledge of the
world of football and its experience gained throughout the years.
33.
Consequently, in order to estimate the amount of compensation due to FC X in the present
case, the Chamber firstly turned its attention to the remuneration and other benefits due
to the player under the existing contract and the new contract, which criterion was
considered by the Chamber to be essential. In this context, the members of the Chamber
deemed it important to emphasize that the wording of article 17 para. 1 of the Regulations
allows the Dispute Resolution Chamber to take into consideration both the existing
contract and the new contract in the calculation of the amount of compensation, thus
enabling the Chamber to gather indications as to the economic value attributed to a player
by both his former and his new club.
FC X / Player Z / FC Y
11
34.
In this regard, the Dispute Resolution Chamber established, on the one hand, that the
employment contract between FC X and the player, signed on 1 January 2007, had been set
to expire at the end of the season 2009/2010. The player had undisputedly received his
salary until and including March 2008, entailing that the total value of his employment
agreement with FC X for the remaining contractual period of two seasons and three
months appeared to be composed of the proportional amount of AAA 180,000 for the
months April 2008 to June 2008 as well as the amount of AAA 720,000 each for the seasons
2008/2009 and 2009/2010, totalling AAA 1,620,000 (equivalent to approximately CCC
300,000).
35.
On the other hand, the Dispute Resolution Chamber noted that the annual remuneration
earned by the player under the terms of his new employment contract with FC Y amounts
to CCC 240,000. Consequently, the members of the Chamber established that the value of
the new employment contract concluded between the player and FC Y for the same period
of time, i.e. from April 2008 until the end of the season 2009/2010, appears to amount to
CCC 540,000. Having stated this, the Dispute Resolution Chamber took due note that the
player had increased his income by over 50% by concluding an employment contract with
FC Y. Furthermore, the Dispute Resolution Chamber recalled that the remuneration paid by
the player’s new club to the player is particularly relevant in so far as it reflects the value
attributed to his services by his new club at the moment the breach of contract occurs and
possibly also provides an indication towards the player’s market value at that time.
36.
The members of the Chamber then turned to the essential criterion relating to the fees and
expenses possibly paid by the former club for the acquisition of the player’s services in so
far as these have not yet been amortised over the term of the relevant contract. In this
regard, however, the Dispute Resolution Chamber held that it had not been provided with
any information by FC X, due to which this criterion could not be taken into account for the
purpose of assessing the applicable amount of compensation in the present matter.
37.
Likewise, the Chamber also held that FC X had omitted to provide the Dispute Resolution
Chamber with any information regarding costs it had allegedly incurred for the player’s
replacement or any offers it had possibly received for the transfer of the player, due to
which such factors could not be taken into account for the calculation of the compensation
for contractual breach either.
38.
The Chamber then turned its attention to the aspect relating to the “specificity of sport”
which is equally explicitly referred to in article 17 para. 1 of the Regulations. At the outset,
the Dispute Resolution Chamber recalled that this important aspect has been recognised by
the European Union and has repeatedly been referred to by the CAS for the purpose of
establishing the applicable amount of compensation in case of contractual breach, ensuring
that the decisions rendered are not only just and fair from a strictly legal point of view, but
that they also correspond to the specific needs and interests of the football world and its
stakeholders. In this regard, and with reference to the respective jurisprudence of the CAS,
the Dispute Resolution Chamber recalled that the specificity of sport allows for it to take
FC X / Player Z / FC Y
12
into account the circumstance that players can be considered the main asset of a club in
terms of their sporting value but also from a rather economic point of view.
39.
In light of the foregoing, the Dispute Resolution Chamber considered that the sporting
damage caused to FC X by the player’s unilateral breach of contract without just cause was
particularly important. In this respect, the members of the Chamber referred to the
exceptional and outstanding position the player had held with FC X, as the club’s first
goalkeeper, one of the best players on his position of his continent, a member of the
national team of A and holder of several awards as well as numerous titles along with FC X.
Likewise, the Chamber paid due consideration to the fact that FC X lost its first goalkeeper
before the crucial part of the season 2007/2008 and outside the respective registration
period as well as the resulting difficulties of suddenly having to replace a player of such
calibre in the course of an ongoing season. The foregoing led the Chamber to conclude
that the breach of the employment contract by the player has prevented FC X from
counting on one of its key player’s high quality and valued services for over two additional
seasons and from possibly negotiating his transfer to a third club for a financial profit and
has, thus, caused a considerable sporting damage to FC X, which shall equally be
compensated by the player.
40.
In this context, the Dispute Resolution Chamber was also eager to stress that the
employment contract concluded between FC X and the player had, at the moment the
latter left FC X to play for FC Y, still approximately two years and three months to run, i.e. a
very important share of the entire contract duration of three and a half years. In this
respect, the Dispute Resolution Chamber pointed out that the player had not even fulfilled
his contractual obligations towards FC X during half of the stipulated duration of the
contract, which the Chamber decided to take into account as an aggravating circumstance.
41.
In sum, the Chamber concluded that the amount of compensation for breach of contract
without just cause to be paid by the player to FC X is firstly composed of the amount of
UUU 300,000 being the reflection of the remuneration and other benefits due to the player
under the previous and the new contract and the value attributed to his services by the
both clubs. Furthermore, taking into account the important sports-related damage caused
to FC X by the player and the fact that the relevant breach of contract occurred during the
protected period with over two more seasons of his contract with FC X to run, the Chamber
considered that the total amount of UUU 900,000 is to be considered an appropriate and
justified amount of compensation to be awarded to FC X. In this respect, the members of
the Chamber finally deemed it imperative to emphasise that the sanctioning nature of the
provisions contained in article 17 of the Regulations cannot be disregarded.
42.
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 UUU
900,000 to FC X as compensation for breach of contract. Furthermore, the club FC Y is
jointly and severally liable for the payment of the relevant compensation.
FC X / Player Z / FC Y
13
43.
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 para. 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.
44.
In this regard, the Dispute Resolution Chamber recalled that, as established under point
II.23. above, the breach of contract by the player had occurred during the applicable
protected period. Consequently, the Chamber decided that, by virtue of art. 17 para. 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 new club following the notification of the
present decision.
45.
Finally, the members of the Chamber turned their attention to the question whether, in
view of art. 17 para. 4 of the Regulations, the player’s new club FC Y must be considered to
have induced the player to breach his contract with FC X without just cause during the
protected period, and therefore shall be banned from registering any new players, either
nationally or internationally, for two registration periods.
46.
In this respect, the Chamber recalled that, in accordance with the aforementioned
provision, it shall be presumed, unless established to the contrary, that any club signing a
professional player who has terminated his previous contract without just cause has
induced that professional to commit a breach.
47.
Having stated the above, the members of the Chamber summarised that FC Y had
undisputedly travelled to A being well aware of the player’s contractual situation with FC X
and had concluded a contract with the player without the consent of his then employing
club. The foregoing led the Dispute Resolution Chamber to conclude that FC Y has clearly
induced the player to breach his employment contract with FC X, and that, therefore, FC Y
has not been able to reverse the respective presumption contained in art. 17 para. 4 of the
Regulations.
48.
In view of the above, the Chamber decided that in accordance with art. 17 para. 4 of the
Regulations, FC Y shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
49.
In conclusion, the Dispute Resolution Chamber decided that the player has to pay UUU
900,000 to FC X as compensation for the unjustified breach of his employment contract
during the protected period. In this respect, the Dispute Resolution Chamber also
determined that FC Y is jointly and severally responsible for the payment of the abovementioned amount of compensation to FC X.
FC X / Player Z / FC Y
14
50.
Furthermore, the Chamber decided that the player shall be sanctioned with a restriction of
four months on his eligibility to participate in official football matches, taking effect as
from the start of the next season of the player’s new club following the notification of the
present decision. And finally, the Chamber established that FC Y shall be banned from
registering any new players, either nationally or internationally, for the two next entire
and consecutive registration periods following the notification of the present decision.
51.
Finally, the Dispute Resolution Chamber held that the Respondents’ claims for procedural
costs as well as FC Y’s claim for legal costs were rejected in accordance with art. 15 para. 3
of the Procedural Rules and the Chamber’s respective longstanding jurisprudence.
52.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims of FC X are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of FC X is partially accepted.
2.
The player Z has to pay the amount of UUU 900,000 to FC X within 30 days of notification
of the present decision.
3.
FC Y is jointly and severally liable for the payment of the aforementioned compensation.
4.
FC X is directed to inform the player Z and FC Y 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 Z. This sanction shall take effect as of the start of the next season of the player’s new
club following the notification of the present decision.
7.
The club FC Y shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
8.
Any further request filed by FC X is rejected.
FC X / Player Z / FC Y
15
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
FC X / Player Z / FC Y
16