Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Johan van Gaalen (South Africa), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
on the claim presented by the club,
X,
as Claimant
against the player,
M,
and the club,
Z,
as Respondents
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 3 January 2002, the player M (hereinafter: the player), born on 19 September
1979, and the club X (hereinafter: the Claimant or X) concluded an employment
contract valid for a period of five years from the date of signature. The said
contract was registered with the M Football Association (hereinafter: MFA) on 30
November 2005.
2.
Under the terms of the contract, the player was to receive the following sums:
- a “performance bonus” totalling 450,000, of which an amount of 50,000
was to be paid before the end of February 2002; the remainder was to be
paid in instalments;
- a monthly salary of 3,000;
- match bonuses for participation in matches, in accordance with the
scheme determined.
3.
On 9 August 2005, X and the club Z (hereinafter: Z) signed a loan contract for the
player, valid as from 11 August 2005 until 31 July 2006. The said loan contract also
bears the player’s signature.
4.
The preamble to the said loan contract states that X recognises that “the player is
not employed by any club at the time of signature of the contract”.
5.
Article 9 of the loan contract also states that Z “agrees to return the said player to
the club [X] upon expiry of the duration of the present contract”.
6.
Under the terms of article 10.2 of the loan contract, it was agreed that Z was to
pay to the player a remuneration of USD 30,000 as an advance on the contract as
well as USD 120,000, payable in 12 monthly instalments of USD 10,000 each.
7.
According to article 10.1 of the loan contract, Z was to pay X the sum of USD
200,000 in return for acquiring the player on loan.
8.
On 13 July 2006, Z and the player signed an employment contract valid as from 1
August 2006 until 31 July 2007. Under the terms of the contract, the player was to
receive the following sums:
- USD 50,000 payable at the start of the contract;
- USD 300,000, payable in 12 monthly instalments of USD 25,000 each;
- various bonuses.
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9.
On 2 August 2006, the M Football Association contacted FIFA to inform it that its
affiliated club, X had lodged a claim regarding approaches made by Z to the
player with a view to his permanent transfer, without obtaining the prior
authorisation of X. In a letter from the M Football Association to FIFA dated 31
July 2006, X stated that the player had not yet returned to the club and that,
because of this, two attempted transfers to two clubs had been aborted. X alleged
that Z had paid the player’s travel fare so that he could travel to country K from 9
to 14 July 2006 to negotiate his transfer without the prior authorisation of X.
Finally, X also stated that the player was still under contract with X until 2 January
2007, and it therefore demanded that Z send the player back immediately.
10.
On 17 September 2006, Z, having been contacted by FIFA, responded that the
player had joined Z in accordance with the tripartite loan contract valid from 11
August 2005 to 31 July 2006. Z explained that when the country K season had
finished, it had sent the player back to country M. The player had then returned to
country K and contacted Z, stating that he did not have any other contractual
obligations, and offering his services to Z. Club Z then confirmed that it had
signed an employment contract with the player.
11.
According to Z, X had then contacted it and had informed it of the player’s
contractual situation. Z had explained to X that the player had stated that he did
not have any contractual obligations to X. When X had provided a copy of the
employment contract that it had signed with the player, and when Z had shown
this contract to the player, the player had denied ever having signed this contract
and had commented that the signature on this contract was completely different
to his own. The player had therefore reiterated that he was not bound by this
contract and that the signature on it was forged.
12.
On 6 November 2006, X formally lodged a claim with FIFA against the player and
Z. In this respect, X alleged that the player had terminated the contract binding
them without just cause and that this termination had been provoked by the
intervention of Z. To support its claim, X provided a copy of a letter dated 13
September 2006 and addressed to Z, in which X had contested the accusations
made by Z relating to the signature of the player mentioned in the employment
contract, and alleged that if the player had not been under any contract, the three
parties (i.e. X, Z and the player) would not have had to conclude a loan contract
for the player. X insisted that the player was contractually bound to it until 2
January 2007.
13.
In conclusion, X asked FIFA not to issue the International Transfer Certificate for
the player and to “take all necessary measures to prevent the player from
participating in official matches” for Z. Club X also demanded that sanctions be
imposed on Z. Moreover, X indicated that it estimated the damage suffered to
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amount to EUR 600,000. In this respect, X emphasised that, according to article 17
par. 1 of the Regulations on the Status and Transfer of Players, the compensation
for breach of contract should include the remuneration and other benefits due to
the player under the existing contract and/or the new contract.
14.
In response to the claim lodged by X, Club Z reiterated that it had signed an
employment contract with the player on 13 July 2006, having been convinced that
the player did not have any contractual obligations. Z also commented that article
14 of the employment contract clearly stated that “the player acknowledged that
he is absolved from any obligations of M Football Association or any other club,
and in case of any obligations, whether current or subsequent, the second party
shall personally bear it and Z shall bear no responsibility for these obligations”. Z
also indicated that the player had always maintained that the signature on the
employment contract invoked by X was not his own.
15.
Moreover, Z stated that on 26 January 2007, the player had approached the
management of Z and had expressed his desire to terminate the employment
contract binding them because he had to leave country K for personal reasons. Z
and the player had then mutually decided to terminate their contractual
relationship and signed a termination agreement.
16.
In conclusion, Z rejected the claim by X in its entirety, mainly for the following
reasons:
a. Z had sent the player to country M upon expiry of the loan contract;
b. The player’s signature on the employment contract invoked by X was,
according to Z, clearly different from that on his passport and on the
employment contract signed on 13 July 2006;
c. The player had always maintained that he did not have any contractual
obligations and had agreed to assume full responsibility in the event of
problems;
d. X had never requested the ITC, neither when the player had returned to
country M upon expiry of the loan, nor after having claimed to have a valid
contract with the player.
17.
In response to X’s claim, the player indicated that, according to him, the present
dispute did not concern him because the claim submitted by X, dated 31 July 2006,
was only against Z. Moreover, according to the player, he had been loaned by X to
Z for a duration of one year, and the expiry of the loan period coincided with the
end of his contract with X. The player also alleged that the signature on the
employment contract invoked by X did not match his own.
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18.
Finally, the player stated that he was currently part of the X team and was playing
for this club in the championship.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or the DRC) 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 6 November 2006. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber, edition 2005
(hereinafter: the Procedural Rules), are applicable to the matter at hand (cf. article
21 par. 2 and 3 of the Procedural Rules, edition 2008, in combination with 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 2005) 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.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2009), and considering that the present claim was lodged on 6 November
2006, the 2005 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this regard,
the members of the Chamber started by acknowledging the above-mentioned
facts and documentation contained in the file.
5.
First of all, the Chamber noted that the player held that he had no standing to be
sued, since, allegedly, X’s claim was not directed against him. After a careful
examination of the documentation on file, the Chamber noted that X’s claim,
lodged on 6 November 2006, explicitly mentioned the player as well as Z as
responding parties. Therefore, the Chamber concluded that X’s club was directed
against the player as well as Z and that, therefore, both the player and Z had
standing to be sued.
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6.
The Chamber then turned its attention to the fact that it was disputed between
the parties whether the player and X were contractually bound by an employment
contract, allegedly signed on 3 January 2002 and valid for a duration of five years.
7.
In this respect, the Chamber took due note that the player denied having signed
the above-mentioned employment contract. The Chamber acknowledged that the
player held that the signature on this contract was completely different to his own
and that it was, consequently, forged.
8.
In addition, the Chamber took note that Z also stated that the player’s signature
on said employment contract was clearly different than the ones on the player’s
passport and on the employment contract signed between the player and Z on 13
July 2006.
9.
Equally, the Chamber acknowledged that X held that if the player had not been
under any contract, it would not have been necessary for X, Z and the player to
conclude a loan agreement for the loan of the player from X to Z. The Chamber
also noted that X insisted that the player was contractually bound to it for a
period of five years as from 3 January 2002.
10.
Having established the above, the Chamber was, first of all, eager to emphasize
that the alleged forgery of documents does not fall within the scope of its
competence and that such allegations, in principle, had to be examined by the
competent state authorities.
11.
Notwithstanding the above, the Chamber emphasised that in any case, a party
alleging the forgery of a signature would have to provide the Chamber with solid
evidence supporting its claim. In this regard, the Chamber was of the opinion that
neither the player nor Z had provided such evidence. In particular, the Chamber
could not establish any particular discrepancy between the player’s signatures on
the documents contained in the file.
12.
Furthermore, the Chamber found it to be contradictory that, on the one hand, the
player and Z alleged that the player had not been bound by the employment
contract with X, dated 3 January 2002, whereas on the other hand, the three
parties to the present dispute concluded a loan agreement on 9 August 2006 (i.e.
within the period of validity as stipulated in the alleged employment contract
between the player and X dated 3 January 2002). Additionally, the Chamber noted
that said loan agreement stipulated, inter alia, a payment obligation of Z to X “in
exchange of the professional contract of the player”. The Chamber was also eager
to emphasise that the player had not contested having signed the loan
agreement.
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13.
In continuation, the Chamber took note of the content of art. 9 of the loan
agreement concluded between the player and Z, according to which Z agreed to
return the player to X upon expiry of the loan period.
14.
Overall, the Chamber considered that it would have made no sense to conclude
such loan agreement had the player not been under an existing employment
contract with X.
15.
In addition, the Chamber noted that the player alleged that at the end of the loan
period with Z, his employment contract with X had come to an end, too.
Therefore, according to the player’s allegations, another employment contract
than the one dated 3 January 2002 would have had to exist. However, the player
was apparently not able to provide such contract in order to corroborate the
respective allegations. Therefore, and considering the basic principle of burden of
proof, mentioned under art. 12 par. 3 of the Procedural Rules, according to which
a party alleging a fact shall prove the existence of such fact, the Chamber deemed
that the player failed to prove the respective assertion. As a consequence, the
Chamber assumed that there was no such contract, as alleged and described by
the player.
16.
Taking into consideration all of the above, the Chamber decided to reject the
argumentation of both the player and Z as regards the alleged forgery of the
player’s signature on the contract dated 3 January 2002. The Chamber deemed it
decisive that there would have been a valid reason for Z to conclude a loan
agreement for the player in the first place only provided that there was an ongoing employment relationship between the player and X. In other words, had
there been no contractual relationship between the player and X, it would not
have been necessary for Z to conclude a loan agreement with X for the player.
Finally, the Chamber reiterated that it was not convinced by the allegations of the
player and Z as regards the forgery of the player’s signature, for the abovedescribed reasons.
17.
Consequently, the Chamber decided that the employment contract between the
player and X had to be considered as being valid and, therefore, the player was
contractually bound to X for a period of five years as from 3 January 2002 until 2
January 2007.
18.
Having established the above, the Chamber went on to examine whether there
was a breach of contract without just cause by either party and, if so, to establish
the financial consequences of such breach.
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19.
In this respect, the Chamber noted that it was undisputed between the parties
that the player had re-joined Z after expiry of the loan period and that Z and the
player signed an employment contract on 13 July 2006, valid as from 1 August
2006 until 31 July 2007. Bearing in mind the above, the Chamber recalled the
content of art. 18 par. 5 of the Regulations. Said provision mentions that if a
professional enters into more than one contract covering the same period, the
provisions set forth in Chapter IV (i.e. art. 13 et seqq. of the Regulations) apply.
20.
In this regard, since the employment contract signed between the player and X
and the employment contract signed between the player and Z cover, at least
partially, the same time period, the Chamber deemed art. 18 par. 5 of the
Regulations to be applicable to the case at hand.
21.
Therefore, the Chamber turned its attention to art. 13 et seqq. of the Regulations.
In this respect, the Chamber deemed it fit to emphasise that art. 13 and 16 of the
Regulations clearly stipulate, respectively, that a contract between a professional
and a club may only be terminated upon expiry of the term of the contract or by
mutual agreement and that a contract cannot be unilaterally terminated during
the course of a season. Equally, the Chamber referred to the content of art. 14 of
the Regulations, according to which a contract can be prematurely terminated if
there is just cause for such early termination.
22.
In this respect, the Chamber carefully considered the events giving rise to the
present dispute and acknowledged that the employment contract between X and
the player was valid as from 3 January 2002 for a duration of five years, i.e. until 2
January 2007. Equally, the Chamber noted that on 13 July 2006, i.e. within the
period of validity of the aforementioned contract, the player signed an
employment contract with Z. Therefore, the Chamber was of the opinion that the
player prematurely terminated his employment with X on 13 July 2006.
23.
In this respect, the Chamber was eager to point out that the player did not
provide the Chamber with any reason or justification for such early termination.
Consequently, the Chamber concluded, based on an a contrario interpretation of
art. 14 of the Regulations, that the player unilaterally breached his contract with X
without just cause.
24.
Having established the above, the Chamber went on to determine the financial
consequences of the player’s breach of contract. In this respect, the Chamber
turned its attention to art. 17 par. 1 of the Regulations, according to which the
party in breach shall pay compensation.
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25.
Equally, the Chamber acknowledged that X held that the damage it suffered
amounted to EUR 600,000, without however giving specifications as to the
calculation of such amount.
26.
In continuation, the members of the Chamber considered that a careful reading of
art. 17 par. 1 of the Regulations provides the key to assess the amount of
compensation due by the club to the player.
27.
In this context, the Chamber examined the objective criteria listed in art. 17 par. 1
of the Regulations. According to this provision, 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
depending on whether the contractual breach falls within the protected period.
28.
In addition, the 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.
29.
In application of the art. 17 of the Regulations, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract contained a
provision by means of which the parties had, beforehand, agreed upon an amount
of compensation payable by the contractual parties in the event of breach of
contract. The Chamber established that no such compensation clause was included
in the employment contract at the basis of the matter at stake.
30.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters, as set out in art. 17 par. 1 of the Regulations.
31.
In this context, the members of the Chamber deemed it important to emphasize
that the wording of art. 17 par. 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, this enabling the
Chamber to gather indications as to the economic value attributed to a player by
both his former and his new club. Therefore, the Chamber went on to carefully
study the financial provisions stipulated in both the player’s contract with X and
with Z. By doing so, and in order to estimate the amount of compensation due to
X in the present dispute, the Chamber turned its attention to the remuneration
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and other benefits due to the player under the existing contract (i.e. under the
contract with X) and under the new contract (i.e. under the contract with Z), since
the Chamber considered these criteria to be essential.
32.
In this regard, the Chamber established, on the one hand, that on the date of the
player’s breach, the player’s employment contract with X would have been valid
until 2 January 2007, i.e. for a period of five months. The Chamber took into
account that under said employment contract with X, the player was entitled to
receive a monthly salary of 3,000 as well as an overall performance bonus of
450,000 for the whole duration of the contract (i.e. 7,500 for each month during
the five-year contract). Consequently, for the residual duration of his contract with
X, the player would have been entitled to receive an amount of 52,500 (i.e. 5 x
3,000 plus 5 x 7,500). Therefore, the Chamber established the value of the player’s
employment contract with the X club for the remaining contractual period at an
amount of 52,500, equalling USD 5,950.
33.
On the other hand, the members of the Chamber examined the amounts due to
the player according to his employment contract with Z. In this respect, the
members of the Chamber lent emphasis to the fact that the remuneration paid by
the player’s new club can be of particular significance insofar as it reflects not only
the value attributed to the player’s services by a club, but also gives indications as
to the player’s market value. In this context, the Chamber noted that the player
was entitled to receive a yearly salary from Z in the amount of USD 350,000.
Consequently, for the time period of the residual duration of his contract with X
(i.e. for a period of five months), the player was entitled to receive the amount of
USD 145,833 from Z.
34.
On the basis of the remuneration stipulated in the two aforementioned
employment agreements and, in particular, on the remaining value of the player’s
contract with X as well as on the salaries to which the player was entitled based on
his contract with Z, the Chamber concluded that the value of the player’s services
for the period of five months, during which the player would still have been
contractually bound to X, had he not committed a breach of contract, could best
be reflected in the average amount of USD 75,891.
35.
The Chamber then turned its attention to the aspect relating to the “specificity of
sport” which is also explicitly referred to in art. 17 par. 1 of the Regulations as a
criterion to establish the compensation due. At the outset, the members of the
Chamber recalled that this important aspect has been recognized, and repeatedly
referred to, by the Court of Arbitration for Sport (CAS) for the purpose of
establishing an amount of compensation which is just and fair not only from a
strictly legal point of view, but which also takes into account the specific needs
and interests of the football world and its stakeholders.
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36.
In light of the foregoing, the Chamber carefully considered the specific
circumstances of the case at hand. By doing so, it noted that the player had been
under contract with X for a considerable amount of time, before being first
loaned to Z and before subsequently breaching his contract with X. On the other
hand, the Chamber also considered that the player, instead of returning to his
previous club after having been loaned to Z, as foreseen in the loan agreement,
apparently decided, without providing specific reasons for such behaviour, not to
respect his contractual duties towards X but, instead, pursuing his career with Z. By
doing so, the player caused, in the view of the Chamber, a sporting damage to X
which must not be disregarded.
37.
In this respect, the Chamber also recalled the importance of contractual stability in
professional football as well as the fundamental legal principle of pacta sunt
servanda, being a cornerstone of both the FIFA Regulations on the Status and
Transfer of Players as well as of professional football as a whole. Again, the
Chamber pointed out that the player was in evident breach of such principles.
38.
Taking into account the player’s behaviour as well as the sporting damage caused
to X, the Chamber, overall, considered that an amount of USD 100,000 was to be
considered as an appropriate and justified compensation to be awarded to X for
the player’s breach of contract.
39.
Furthermore, the members of the Chamber referred to art. 17 par. 2 of the
Regulations, according to which, in case of a breach of contract committed by a
player, the new club of the player shall be jointly and severally liable to pay
compensation. Consequently, the Chamber decided that Z was jointly and severally
liable for the payment of USD 100,000 as compensation to X.
40.
At this stage, the Chamber took particular note of the statements of Z, according
to which the latter club was convinced that the player was under no on-going
contractual relationship with any other club when the employment contract dated
13 July 2006 was concluded between the player and Z. In this context, the
Chamber was eager to point out that the joint and several liability of Z, being the
new club of a player found to be in breach of contract, is independent of any
inducement to a breach of contract by said club as well as independent of the
question of fault on behalf of Z. 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). Therefore, the Chamber deemed it irrelevant whether
the player had made any affirmations towards Z as regards his contractual
situation and whether, therefore, Z was aware of the player’s employment
contract with X or not.
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41.
In continuation, as regards said joint and several liability, the Chamber turned its
attention to art. 14 of the employment contract concluded between Z and the
player, which stipulated that “The player acknowledged that he is absolved from
any obligations of M Football Association or any other club, and in case of any
obligations, whether current or subsequent, [the player] shall personally bear it
and Z club shall bear no responsibility for this obligations.”
42.
Having carefully studied the content of said clause, the Chamber came to the
conclusion that such stipulation clearly contravened the joint and several liability
of a player’s new club, as stipulated in art. 17 par. 2 of the Regulations.
Furthermore, as regards the claim of X against the player and Z, such a contractual
clause constituted a res inter alios acta, since it was agreed upon only between the
player and Z. For this reason, it could, in any case, not be held against X.
43.
Finally, the Chamber also took note of the statement of Z, according to which it
had sent the player back to country M after the expiry of the loan period. The
Chamber deemed this to be irrelevant, since the breach of contract which is at the
centre of the present dispute occurred when, after the player’s return to country
M, the player and Z concluded an employment contract on 13 July 2006.
44.
As regards the imposition of sporting sanctions on the player and/or Z for the
breach of contract, the Chamber noted that the breach occurred within the fourth
year of the employment relationship between the player and X, i.e. outside of the
protected period (cf. art. 17 par. 3 of the Regulations). Therefore, the Chamber
concluded that no sporting sanctions were to be imposed.
45.
Lastly, the Chamber considered it appropriate to emphasize that the fact that the
player, apparently, has left Z in the meantime did not have any influence on the
liability of both the player and Z, being the new club of the player in the sense of
art. 17 par. 2 of the Regulations, for the payment of the above-mentioned amount
to X.
46.
Overall, therefore, the Chamber decided that the claim of the Claimant is partially
accepted and that the player had to pay to X an amount of USD 100,000 for a
breach of contract without just cause and that Z was jointly and severally liable to
pay such amount to X.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X , is partially accepted.
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2.
Z
3.
The player, M, is ordered to pay compensation for breach of contract in the
amount of USD 100,000 to the Claimant, X, within 30 days of notification of the
present decision.
The club, Z, is jointly and severally liable for the payment of the aforementioned
compensation.
4.
If the aforementioned sum is not paid within the aforementioned deadline,
interest at the rate of 5% per year will apply as of expiry of the stipulated time
limit and the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
5.
Any further request filed by the Claimant is rejected.
6.
The Claimant, X, is directed to inform the player M and the club Z immediately
and directly of the bank account number to which the remittance is to be made
and to notify the Dispute Resolution Chamber of every payment received.
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:
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Jérôme Valcke
Secretary General
Encl.
CAS directives
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