Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Brendan Schwab (Australia), member
Alejandro Maron (Argentina), member
Theodoros Giannikos (Greece), member
on the claim presented by
K, the club
as Claimant
against
M, the player
and
A, the club
as Respondents
regarding breach of contract and inducement to breach of contract.
I.
Facts of the case
1.
On 1 October 2005, the player M and the club K signed an employment contract valid as
from 1 October 2005 until 30 June 2006. On 5 June 2006, both parties signed a further
labour agreement valid as from 1 August 2006 until 30 June 2007. According to the latter
contract, the player was entitled to receive a monthly salary of USD 4,500.
2.
According to K, in late January 2007, the player signed an undated annex to the second
employment agreement concluded on 5 June 2006 (hereinafter: the Annex) which
stipulates as follows:
“Whereas a principal contract has been concluded between both parties on 05/06/2006, and
both parties expressed their willing via this Annex to amend some of the said Contract
clauses by means of amending the term of the original contract to expire on 30/06/2009,
and to increase the monthly salary effective 20/07/2007 to USD 5500 instead of USD 4500.
Accordingly, this annex shall be part and parcel of the original Contract, and all the other
clauses thereof shall be enforceable”.
3.
On 24 June 2007, the player and the club A signed an employment contract valid from 1
July 2007 until 30 June 2009. The agreement provided for a monthly salary of USD 7,000.
Furthermore, according to the contract, the player was entitled to receive an advance
payment of USD 120,000 (USD 60,000 falling due upon signature of the employment
contract and USD 60,000 to be paid on 1 July 2008).
4.
On 30 January 2008, K contacted FIFA and lodged a claim against the player and A for
breach of contract and inducement to breach of contract, respectively, during the
protected period. In particular, K requested that the player and A be declared jointly and
severally liable to pay compensation for breach of contract in the amount of USD 1,000,000
and that sporting sanctions in accordance with art. 17 paras. 3 and 4 of the Regulations on
the Status and Transfer of Players be imposed on them.
5.
Thereby, K explained that, after having left for one month of vacation on 1 July 2007, the
player did not return to K but commenced training with A. K continued explaining that,
subsequently, in September 2007, the player was registered by the Kuwait Football
Association (KFA) for the latter club. In this respect, K held that, by signing an employment
agreement with A the player had without just cause terminated his ongoing contractual
relationship with K under the terms of arts. 17 and 18 para. 5 of the Regulations on the
Status and Transfer of Players.
6.
K furthermore asserted that the player had provided contradictory explanations to justify
the conclusion of the employment contract with A, inter alia that the Annex providing for
an extension of his employment relationship with K was a forgery. K vehemently rejected
this allegation and furthermore pointed towards the fact that the player had not reported
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this alleged forgery to the courts of Kuwait. In this respect, K also underlined that the
Annex had been endorsed by the respective authorities within the Kuwaiti Public
Association of Youth and Sport (PAYS) and the KFA.
7.
With regard to the involvement of A, K held that its Kuwaiti rival club had not only induced
the player to breach his contract, but that this inducement formed part of a wider coup, by
means of which A had also enticed K then coach, assistant coach, and yet another player to
leave K and join A during a crucial part of the ongoing season. K asserted that it had
contacted A by telephone and in writing, by means of a letter dated 3 June 2007 addressed
to A and submitted to FIFA, when it heard rumours that A wished to employ some of K
coaches and players; this had however been denied by A at that time.
8.
Concerning the compensation claimed, K held that, in cases of breach of contract, Kuwaiti
civil law assesses the applicable amount of compensation based on actual financial and
moral loss suffered by the damaged party. On this basis, K explained that it had paid USD
120,000 to acquire the player’s services and that, since the player only served two years of a
four-year term, the non-amortised value amounted to USD 60,000. K also pointed out that
the remaining value of the contract, amounting to USD 132,000, needed to be taken into
account. Furthermore, K asserted that, in order to replace the player as well as the other
player who had also left K to sign a contract with A, it had to find two new players and pay
them salaries amounting to USD 116,500 and USD 200,000, respectively, for one season.
Finally, K emphasised, whilst acknowledging that it had not wished to transfer the player,
that the latter was a player in demand and that it had therefore lost the hypothetical
opportunity to gain compensation for his transfer. Furthermore, K referred to the punitive
element which had to be considered as the breach occurred during the protected period.
9.
In response thereto, the player rejected the club’s claim and explained that, on 21 June
2007, he went to K to receive his financial dues and to settle pending matters in connection
with his terminated contract. Allegedly, an employee of K made him sign some
administrative forms which were apparently necessary to terminate the contract and which
were written in Arabic only. The player held that the next day he returned to Serbia with a
one-way ticket that had been paid by K. In late June 2007, he took up negotiations with A
and finally signed a contract with this club. The employment of the player had apparently
been announced by A at a press conference on 25 June 2007, without any reaction of K.
Only on 12 August 2007, when K consent was required by the KFA in order to register the
player with A, K for the first time invoked and presented the Annex and declared for the
first time that it had prolonged its employment relationship with the player. According to
the player, the only reason why K kept the alleged renewal of his contract by means of the
Annex silent during 51 days was due to the fact that the Annex was forged. Furthermore,
the player maintained that the Annex did not correspond to the manner K and himself had
concluded their contracts previously.
10.
In this respect, the player emphasised that, on 21 June 2007, the K employee who had
given him documents to sign had claimed the Annex was just an administrative paper
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necessary for the termination of his contract. The player also held that the document was
only written in Arabic when he signed it and that the English text had been inserted in the
Annex later on, which was according to the player demonstrated by the big blank space
between the printed text and his signature at the bottom of the paper. Finally, the player
asserted that K had only paid him a one-way ticket to Serbia in June 2007, which would not
be logical if the club had expected him to come back.
11.
On its part, A stated that the contract it had signed with the player had been submitted to
the KFA on 1 August 2007 and been endorsed by the PAYS. On 2 August 2007, the KFA
requested K consent in order to be able to register the player for A. However, K supposedly
refused to release the player, due to which he could at first not be registered with A. The
PAYS then started an investigation into the matter and, on 11 September 2007, issued a
decision according to which A was entitled to register the player, as the previous
registration of the player for K had not been made properly.
12.
In reaction to the respondents’ respective positions, K explained that, in view of the PAYS’
decision dated 11 September 2007 to allow the registration of the player for A, it had
started proceedings against the PAYS before the administrative court in Kuwait on 3
October 2007. Thereby, K sought declarations that its contract with the player was valid
and that the decision of the PAYS to permit the registration of the player with A was based
on an erroneous application of the KFA’s regulations. K emphasised that, since its claim did
not seek remedies against A or the player, the administrative court was limited to making a
declaration on a point of administrative law and could not rule in relation to breach of FIFA
regulations or damages or other remedies. On 16 June 2008, the Court of Appeal of
Kuwait’s second Administrative circuit issued a decision considering inter alia that “M” is
engaged with K through a professional contract which was renewed till the year 2009. This
contract was certified by the Public Authority for Youth and Sport. (…) K submitted a
request to register the player in its registries at the Kuwaiti Football Federation. Thence,
this contract is valid and existing. It fulfil all the conditions. It should be considered and
respected.” With regard to the player’s contract with A dated 24 June 2007, the court held
that “this contract is really a transference process of a professional player from one club to
another that took place through an illegal and invalid manner. The contract submitted by
A club was executed under the effective contract of the said player with K and without the
consent of the latter to this transference”. Furthermore, the court held “The [PAYS] is not
allowed to certify [the A contract] and not enable A club to enter the player in its registry
at the federation. (…) [PAYS] should have allowed [K] to register the player at the
federation or leave the transference matter to the two clubs and the professional player
and make sure that such transference is done in a legal and valid manner. This is because
the renewal of the player contract with [K] took place under its knowledge and it certified
it”. Therefore, the court decided that its “ruling should enable [K] to enter the [player] in
its registries at the Kuwaiti Football Federation as a professional foreign player in the club
first football team(…)”.
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13.
Finally, K rejected the player’s accusations regarding the alleged forgery of the Annex.
14.
On 28 January 2009, A informed FIFA that its contract with the player had been terminated
in the meantime.
15.
No final comments were received from the player, in spite of FIFA’s respective request.
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 30 January 2008. Consequently, the 2005 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 paras. 1 and 2
of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber, edition 2008, and art. 18 paras. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 para. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 para. 1 in combination with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players (edition 2009) the Dispute
Resolution Chamber is competent to deal with the matter at stake, which involves, on the
one hand, a Kuwaiti club and, on the other hand, a Serbian player and another Kuwaiti
club, and is related to an alleged breach of an employment contract respectively the
alleged inducement to such breach of contract.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that in accordance with art. 26 paras. 1
and 2 of both the 2008 and 2009 edition of the Regulations on the Status and Transfer of
Players, and considering that, on the one hand, the present claim was lodged on 30 January
2008, and that, on the other hand, the second employment contract between the player
and K was signed on 5 June 2006 and the Annex between the same parties was apparently
signed in January 2007, according to K, or in June 2007, according to the player, the 2008
edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
Consequently, entering into the substance of the case at stake, the members present at the
meeting first of all recalled that on 1 October 2005, the player and K had entered into an
employment contract set to expire on 30 June 2006. This contractual relationship was
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prolonged on 5 June 2006, when the mentioned parties signed a second labour agreement
valid as from 1 August 2006 until 30 June 2007.
5.
In continuation, the members of the Chamber took due note of K assertion, according to
which the player and K had signed in late January 2007 an undated annex to the labour
agreement dated 5 June 2006, by means of which the duration of their employment
relationship had been extended until 30 June 2009. In view of this circumstance, according
to K, by failing to return to its team after the 2006/2007 season and by signing an
employment contract with A, the player had breached his employment contract with K
under the terms of arts. 17 and 18 para. 5 of the Regulations.
6.
On the other hand, the members of the DRC understood that the player claimed not to be
bound by the relevant Annex. Whilst the player had in the beginning apparently asserted
that the Annex was a forgery, he had later on and during the present proceedings argued
that he had been induced to sign the relevant document in June 2007 by an employee of K,
who had however claimed that the Annex was just an administrative paper necessary for
the termination of his contract.
7.
With regard to the aforementioned positions of the parties, the members present at the
meeting concurred that, first and foremost, it had to be established whether there was a
valid employment relationship between the club K and the player M at the time the latter
signed a new employment contract with A, in other words whether the Annex had been
validly concluded by K and the player.
8.
In this context, the Dispute Resolution Chamber proceeded to deliberate on the player’s
objections as regards the validity of the Annex. Thereby, the members of the Chamber first
of all clarified that, to their understanding, the player had changed his line of
argumentation and did not actually anymore claim before FIFA the Annex to be a forgery,
but rather asserted that he had been “tricked” into signing it by an employee of K.
9.
In this regard, and for the sake of completeness, the Dispute Resolution Chamber attached
importance to emphasising that it was not competent to adjudicate on criminal offences,
such as the alleged forgery of a signature, and that, as a general principle, it is up to the
party invoking a forgery of a signature to initiate the corresponding proceedings before
the competent penal authorities. Such steps did not appear to have been taken by the
player in the present matter, but the members of the Chamber were satisfied that the
player did anyhow not appear to adhere to the argumentation that the Annex was forged
and rather seemed to admit that the player’s signature on the Annex was his own.
10.
On account of the foregoing, the Chamber turned its attention to the original version of
the Annex which had been presented by K. Thereby, each member of the Chamber assured
himself that the document appeared to have been duly signed by both the player and a
representative of K and did not show any features that would appear out of the ordinary
or somehow suspicious.
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11.
Thereby, the members of the Chamber bore in mind that, according to the player, an
employee of K had induced him to sign the Annex in June 2007 by asserting that it was a
document necessary for the termination of his employment relationship with K. In this
respect, the player had furthermore asserted that the document had only been written in
Arabic when he signed it and that the English text had been inserted later on.
12.
Having extensively discussed the player’s line of argument, the Dispute Resolution Chamber
considered unanimously that it could not be upheld. Firstly, the DRC recalled the contents
of 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, and pointed out that the
player had not presented any convincing evidence in support of his assertions that he had
been deceived by an employee of K and/or that the English text had been inserted at a
later stage. Likewise, in respect of the unusually big blank spaces alleged by the player, the
Chamber held that it could not see anything peculiar about how the contract had been
drafted.
13.
Regardless of the above, the Dispute Resolution Chamber emphasised that, even if the
Annex had been drafted exclusively in Arabic, which – as mentioned – the Chamber was not
at all convinced of, it would have to refer to the basic principle that a party signing a
document of legal importance without knowledge of its precise contents, as a general rule,
does so on its own responsibility. Consequently, even if the player had freely signed a
document in Arabic only, the fact that he does not understand this language would in
principle not be apt to exonerate him from the obligations he entered into by signing the
relevant document.
14.
In addition, the Chamber held that the player’s arguments that the contract did not
correspond to the manner he had previously concluded his contracts with K and that the
latter club had only paid him a one-way ticket to Serbia in June 2007 (which had also
remained unproven) were no well-founded objections with regard to the alleged invalidity
of the Annex. According to the Dispute Resolution Chamber, the same goes for the player’s
argument that K had not announced before 12 August 2007 that it had prolonged its
employment relationship with the player. In the opinion of the members of the Chamber,
such alleged circumstances were by no means of sufficient conclusiveness to be able to call
the validity of the Annex into question.
15.
On account of the above, and even if the dated of signature of the Annex remains
uncertain, the Chamber deemed that it had no other alternative but to conclude that the
Annex had been validly concluded and, therefore, that the player M and the Kuwaiti club
K had indeed extended their labour relationship beyond 30 June 2007, i.e. until 30 June
2009 in accordance with the terms of the Annex. As a consequence, the player had indeed
been contractually bound to K on 24 June 2007, when he signed an employment contract
with A. Moreover, the Dispute Resolution Chamber was comforted in its view that the
Annex was a valid and legally binding document by the actions of the Kuwaiti authorities,
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i.e. the endorsement of the Annex by the PAYS and the KFA, as well as the respective
findings of the Kuwaiti administrative court which had dealt with the issue of the player’s
registration.
16.
Furthermore, in lack of any other line of argument which could possibly justify the
conclusion of an employment contract between the player and A during the course of the
labour relationship between the player and K, the Dispute Resolution Chamber, referring
to art. 18 para. 5 of the Regulations, established that, by entering into a labour contract
with A, the player had breached his employment contract and the Annex concluded with K
without just cause.
17.
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 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”.
Since the Annex signed by K and the player had led to an extension of their contractual
relationship, the Chamber also made reference to art. 17 para. 3 last sentence of the
Regulations, according to which “The Protected Period starts again when, while renewing
the contract, the duration of the previous contract is extended”. On account of the
foregoing, the Dispute Resolution Chamber pointed out that the player, born on 17 March
1980, had been below 28 years of age when he signed the Annex in January or June 2007
extending the relevant employment relationship and consequently, a protected period of
three years started again as from 1 July 2007. The DRC took note that the player’s breach of
contract had occurred when he entered into a new contractual relationship with A in JuneJuly 2007, and therefore concluded that the said breach had occurred within the protected
period.
18.
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.
19.
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 K.
Furthermore, in accordance with the unambiguous contents of art. 17 para. 2 of the
Regulations, the Chamber established that the player’s new club, i.e. A, 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
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attend to the question of the possible inducement to breach of contract by A at a later
stage of its deliberations, i.e. after having discussed the issue of the compensation due to K.
20.
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 and 2009 version of the Regulations,
which all stakeholders – including player and club representatives – agreed upon in 2001.
21.
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.
22.
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.
23.
Above all, it was emphasised that the criteria contained in art. 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.
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. In
this regard, the Dispute Resolution Chamber emphasised 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.
24.
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25.
Consequently, in order to estimate the amount of compensation due to K 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 art. 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.
26.
In this regard, the Dispute Resolution Chamber established, on the one hand, that the
Annex signed by K and the player had prolonged their contractual relationship from 30
June 2007 until 30 June 2009. The player had never rendered his services to K during the
prolongation of the contract, entailing that the total value of his employment agreement
with K for the remaining contractual period of two entire seasons amounts to USD 132,000
(i.e. 24 x USD 5,500).
27.
On the other hand, the Dispute Resolution Chamber noted that the remuneration due to
the player under the terms of his new employment contract with A for the same period of
time, i.e. for the seasons 2007/2008 and 2008/2009, amounts to USD 288,000. Thereby, the
Dispute Resolution Chamber took due note that the player had increased his income by
over 100% by concluding an employment contract with A. In this context, 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.
28.
On the basis of the remuneration stipulated in the two aforementioned employment
agreements, the Chamber determined that the value of the player’s services for the two
seasons during which the player would still have been contractually bound to K, had he
not committed the relevant breach, could be reflected by an average amount of USD
210,000.
29.
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, a criterion
that had been invoked by K. In this regard, however, the Dispute Resolution Chamber
noted that, whilst K asserted having paid USD 120,000 in order to acquire the player’s
services, K and the player had initially apparently only planned to collaborate during one
season, as demonstrated by their employment contract dated 1 October 2005 which had
been valid as of that date until 30 June 2006. Accordingly, the members of the Chamber
unanimously considered that USD 120,000 was the sum K had been prepared to invest in
order to secure the player’s services for one year only. In this respect, the deciding
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authority was of the firm opinion that the fact that the contractual parties had afterwards
decided to continue their labour relationship could not lead to an extension of the period
of time during which K initial investment could be amortised. As a consequence, and in
view of the fact that the amount of USD 120,000 had been fully amortised, the Dispute
Resolution Chamber refused to take into account the said amount when establishing the
compensation due to K.
30.
Furthermore, with regard to the criteria of costs allegedly incurred for the player’s
replacement or transfer offers the damaged club had not been able to accept due to the
player’s departure, the Chamber held that, firstly, it was not convinced that the additional
costs K had allegedly incurred for the recruitment and remuneration of two players was a
direct consequence of the player’s breach of contract, i.e. that the two players would not
have anyhow been employed. And secondly, the Chamber considered that K had not been
able to demonstrate that it had indeed missed out on a concrete offer for the transfer of
the player due to his premature and unjustified departure. Accordingly, the Chamber
decided not to take these criteria into account for the calculation of the applicable amount
of compensation for breach of contract.
31.
The Chamber then turned its attention to the aspect relating to the “specificity of sport”
which is equally explicitly referred to in art. 17 para. 1 of the Regulations. At the outset,
the Dispute Resolution Chamber recalled that this important aspect has been recognized
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 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.
32.
In light of the foregoing, the Dispute Resolution Chamber considered that the sporting
damage caused to K by the player’s unilateral breach of contract without just cause had
been considerable. In particular, the player had, shortly after signing the Annex with K
extending the contractual relationship for two additional seasons, left the club and had
not served any of the contractual duration stipulated in the Annex, which the Chamber
decided to take into account as an aggravating circumstance. Furthermore, under the
aspect of the specificity of sport, the Chamber decided to duly take into account, whilst
determining the applicable amount of compensation, that the player’s breach of contract
had occurred within the protected period.
33.
In sum, the Chamber concluded that the amount of compensation for breach of contract
without just cause to be paid by the player to K is firstly composed of the amount of USD
210,000 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
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both clubs. Furthermore, taking into account the sports-related damage caused to K by the
player and the fact that the relevant breach of contract occurred during the protected
period, the Chamber considered that the total amount of USD 400,000 is to be considered
an appropriate and justified amount of compensation to be awarded to K. In this respect,
the members of the Chamber finally deemed it imperative to emphasise that the
sanctioning nature of the provisions contained in art. 17 of the Regulations cannot be
disregarded.
34.
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
400,000 to K as compensation for breach of contract. Furthermore, the club A is jointly and
severally liable for the payment of the relevant compensation.
35.
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.
36.
In this regard, the Dispute Resolution Chamber recalled that, as established under point
II.17. above, the breach of contract committed 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.
37.
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 A must be considered to
have induced the player to breach his contract with K during the protected period, and
therefore shall be banned from registering any new players, either nationally or
internationally, for two registration periods.
38.
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.
39.
Having stated the above, the members of the Chamber summarised that, as both clubs
involved in the present matter play in the same country and same league, A had no doubt
been aware of the player’s employment with K. Bearing this in mind, A had not only failed
to demonstrate that it had taken any precautions to make sure that the player’s labour
agreement with K was about to expire before contracting him; what is more, A had during
the present proceedings also omitted to contest K allegation, according to which the
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inducement of the player to breach his contract was a part of a wider coup, by means of
which A had apparently also prompted K then coaches and another player to join A.
Furthermore, A had not disputed that it had been contacted by K when the latter became
concerned by rumours regarding this alleged coup, but apparently did not react or take
any measures in order to settle the matter in an amicable way. Instead, it seems that A
insisted in the transfer of the player although it knew about the player’s contractual
situation. The foregoing led the Dispute Resolution Chamber to conclude that A had not
been able to reverse the respective presumption contained in art. 17 para. 4 of the
Regulations and, consequently, that A had induced the player to breach his employment
contract with K.
40.
In view of the above, the Chamber decided that in accordance with art. 17 para. 4 of the
Regulations, A 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.
41.
In conclusion, the Dispute Resolution Chamber decided that the player has to pay USD
400,000 to K as compensation for the unjustified breach of his employment contract during
the protected period. In this respect, the Dispute Resolution Chamber also determined that
A is jointly and severally responsible for the payment of the above-mentioned amount of
compensation to K.
42.
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 A 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.
43.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims of K are rejected.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the club, K is partially accepted.
2.
The Serbian player, M, has to pay the amount of USD 400,000 to K Club within 30 days of
notification of the present decision.
3.
The club, A, is jointly and severally liable for the payment of the aforementioned sum.
4.
K Club is directed to inform the player M and the club A 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 consideration and a formal decision.
6.
A restriction of four months on his eligibility to play in official matches is imposed on the
player M. 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 A Club 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 the club K Club is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly
within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto.
Within another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal
with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
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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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