Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 May 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Carlos Soto (Chile), member
Mario Gallavotti (Italy), member
Caio Cesar Vieira Rocha (Brazil), member
on the claim presented by the club
L,
as Claimant
against the player
S,
as First Respondent
and the club
T,
as Second Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 12 July 2004, the player, S (hereinafter: the First Respondent), born on 17 May
1975, and the club, L (hereinafter: the Claimant), concluded an employment
contract valid from 1 July 2004 until 30 June 2007. On 7 July 2005, the parties
agreed to extend their contractual relationship for another two years, i.e. from 1
July 2007 until 30 June 2009, by means of a new agreement (Avenant au contrat).
2.
On 30 June 2008, the First Respondent signed another employment contract with
the club, T (hereinafter: the Second Respondent), valid until 31 May 2010, i.e. for
the sporting seasons 2008/2009 and 2009/2010.
3.
On 25 August 2008, the T Football Federation (hereinafter: FF) contacted FIFA and
requested its assistance in order to obtain the international transfer certificate
(ITC) of the First Respondent from the F Football Federation. As the latter had
informed the T Football Federation that it would not issue it, on 19 September
2008, the Single Judge of the Players’ Status Committee decided that the T
Football Federation was authorised to provisionally register the First Respondent
for the Second Respondent.
4.
On 16 October 2008, the Claimant submitted its claim to FIFA against the First and
Second Respondent related to the contractual dispute and asked the Dispute
Resolution Chamber to establish that: 1) the decision of the Single Judge of the
Players’ Status Committee passed on 19 September 2008 had not been taken in
conformity with the applicable regulations; that 2) the First and Second
Respondent should be sanctioned in accordance with art. 17 par. 3 and 4 of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations);
and that 3) the First and Second Respondent should be held liable to pay
compensation amounting to at least EUR 2,000,000 (due at the time) and up to
EUR 3,200,000, in accordance with art. 1.1 of the unsigned draft of the transfer
agreement dated 30 August 2008, plus interest as of 1 July 2008.
5.
Regarding point 1) above (cf. no. I./4. above), the Claimant could not follow, in
particular, the Single Judge’s reasoning that since it had entered into negotiations
with the Second Respondent for a possible transfer of the First Respondent, this
meant it was no longer interested in the services of the player. According to the
Claimant, only after having noticed that the First Respondent had breached the
employment contract, had it tried to find an amicable way to settle the matter by
concluding a transfer agreement with the Second Respondent.
6.
Regarding point 2) above (cf. no. I./4. above), and according to the Claimant, the
First Respondent had breached the contract during the protected period since the
initial contract with the First Respondent had been extended by means of the
‘Avenant au contrat’ dated 7 July 2005 (cf. no. I./1. above). The Claimant further
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sought to argue that the breach of contract committed by the First Respondent
had not and had never been called into question by the parties.
7.
Regarding point 3) above (cf. no. I./4. above), the Claimant requested the Dispute
Resolution Chamber not to follow the CAS decision in the Webster case in order to
establish the amount due as compensation, deeming instead that such amount
should be calculated in accordance with F labour law. In this context, the Claimant
argued that the transfer agreement it had allegedly concluded with the Second
Respondent at the end of August 2008 for the transfer of the player should
constitute the basis for calculating the compensation. The Claimant argued that,
according to the said agreement, the Second Respondent had agreed to pay EUR
500,000 on 10 September 2008, EUR 200,000 on 20 September 2008, EUR 150,000
on 30 November 2008, EUR 150,000 on 31 December 2008 and EUR 200,000 on 31
March 2009. Moreover, such amount would, according to the aforementioned
agreement, be increased by EUR 400,000 each time that the Second Respondent
failed to pay according to schedule.
8.
On 20 November 2008, the First Respondent submitted his position in response to
the claim lodged by the Claimant. He explained that on 7 July 2005, he had
concluded a new employment contract with the Claimant which would have
extended their mutual contractual relationship until 30 June 2009. On 31 May
2008, the First Respondent wrote to the Claimant to unilaterally terminate his
employment contract with the club L on the basis of art. 17 of the Regulations.
The relevant passage of this letter reads as follows: “Consequently, I hereby
inform you that, in application of article 17, I terminate the contract of
professional player which binds me to your club until 30 June 2009. Therefore,
being freed from any commitment towards your club and in accordance with
article 17, I shall start looking for another employer as of today”. According to the
First Respondent, he had been willing to compensate the Claimant for his
unilateral breach of contract. He further explained that after having looked for
offers from other clubs, he had finally decided to sign a contract with the Second
Respondent on 30 June 2008.
9.
On 30 June 2008, the Claimant informed the Second Respondent of its intention
to lodge a claim with FIFA for the alleged unlawful departure of the First
Respondent. The Second Respondent responded to the Claimant on 5 July 2008 by
saying that it had been assured by the First Respondent and his agent, Mr X, that
he was free to sign a new contract with another club. On 16 July 2008, the Second
Respondent apparently proposed an amicable solution to the Claimant in order to
avoid a potential legal dispute.
10.
In this context, the First Respondent explained that the Second Respondent and
the Claimant had apparently started negotiations between 29 and 31 August 2008
concerning an agreement for the player’s move between both clubs. According to
the First Respondent, the Second Respondent had notified the Claimant on 31
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August 2008 that it was no longer interested in concluding the said agreement as
the First Respondent had not accepted the offer. After having rejected the
aforementioned agreement, the First Respondent claimed that the Second
Respondent continued the proceeding before the Single Judge of the Players’
Status Committee in order to obtain the provisional registration of the player.
11.
According to the First Respondent, the Claimant had never provided any evidence
that it had remained interested in his services. Furthermore, he deemed that he
had breached his contract with the Claimant outside of the protected period and
that, consequently, no sporting sanctions should be imposed on him. In this
regard, he argued that since he had renewed his contractual relationship with the
Claimant by signing a new contract on 7 July 2005, when he was over 28 years of
age, the protected period ran for two years, i.e. from 1 July 2005 to 30 June 2007.
He also sought to argue that since the contract signed in July 2005 was a new
contract and had replaced the his initial contract, the protected period could not
reasonably start on the date the initial contract ended.
12.
As to the compensation to be paid to the Claimant, the First Respondent was of
the opinion that the relevant sum should amount to EUR 758,333, corresponding
to the remaining value of the contract concluded between him and the Claimant
(i.e. EUR 650,000 for the salaries until the end of the contract [13 x EUR 50,000]
and EUR 108,333, representing one twelfth of the June 2008 bonus and the bonus
for the entire 2008-2009 season). Furthermore, the First Respondent deemed that
the aforementioned compensation should be jointly borne by him and his new
club, the Second Respondent.
13.
On 2 December 2008, the Second Respondent submitted its position in response to
the claim. It explained that just after it had concluded the employment contract
with the First Respondent, the Claimant had informed it that Mr S had still a valid
contract with them. The Second Respondent further stated that on 9 July 2008, by
means of a letter addressed to the Second Respondent, the Claimant had
apparently acknowledged that the club T had not been responsible for the
contractual dispute between both clubs and that the First Respondent would soon
be summoned to appear in front of the F Professional Football League in order to
give his explanation to the matter.
14.
The Second Respondent further explained that the parties had apparently started
a first round of negotiations with a view to contractually settling the issue of the
player’s change of club, but as the amount requested by the Claimant was too
high, no agreement had been found. In this context, the Second Respondent
informed the Claimant that as the negotiations over an agreement to amicably
transfer the First Respondent had not been successful, it proposed to go ahead
with the ITC procedure and for the amount of compensation to be determined in
a subsequent labour dispute. However, according to the Second Respondent, the
Claimant had refused this proposal.
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15.
In a further exchange of phone calls, and after the Claimant had mentioned the
amount of EUR 1,500,000, the parties presumably started new negotiations over
an agreement for the transfer of the First Respondent. This new phase of
negotiations, in which apparently neither the First Respondent nor his legal
representative took part, led to the drafting of a final agreement to be signed by
all the parties involved.
16.
The Second Respondent rejected the position of the Claimant according to which F
labour law should be taken into account in the dispute and considered that the
relevant breach of contract had taken place outside of the protected period. The
Second Respondent also rejected the position of the Claimant that any
compensation awarded should be based on the draft of the alleged ‘transfer
agreement’ dated 30 August 2008, as it claimed that the said agreement had
eventually never been signed by the parties.
17.
Furthermore, the Second Respondent claimed compensation from the Claimant
amounting to EUR 100,000 plus interest as of 30 September 2008, since the First
Respondent had been prevented from playing between the date of the first match
with his club on 23 August 2008 and the granting of provisional registration on 20
September 2008.
18.
On 22 December 2008, the Claimant submitted its response to the comments made
by the First Respondent and the Second Respondent, in which it reiterated its
previous position and deemed that the players’ agent, Mr X, should also be
sanctioned in accordance with art. 17 par. 3 and 4 of the Regulations.
Furthermore, the Claimant argued that the First Respondent had never offered to
pay compensation to it, as it deemed that, in his notice of termination, he had
considered himself to be free to sign a contract with another club.
19.
As to the allegations raised by the First Respondent according to which the
Claimant had not provided any evidence asserting that the L club was still
interested in his services, the Claimant submitted a copy of an other agreement
called ‘Avenant au contrat professionnel’, dated 18 July 2008, according to which
the First Respondent’s employment contract was to have been extended by one
season until 30 June 2010 as well as a press article apparently dated 5 August 2008
in which the First Respondent’s agent, Mr X, apparently declared that the
proposal of the Claimant to extend the First Respondent’s contract would have
been accepted, if he, the player’s agent, had received a commission from the
Claimant.
20.
In its second submission dated 15 January 2009, the First Respondent, while
reaffirming his previous position, claimed that since the so-called ‘Avenant au
contrat professionnel’ dated 18 July 2008 had only been proposed to him more
than one and a half months after he had terminated his employment contract
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with the Claimant, it could not be taken into consideration as proof that the
Claimant was still interested in his services.
21.
Furthermore, the First Respondent deemed that if it was recognised by the
Dispute Resolution Chamber that the ‘transfer agreement’ allegedly involving the
Claimant and the Second Respondent was valid, the present case would have to be
considered solely as a dispute between clubs and should therefore be heard by the
Players’ Status Committee and not by the Dispute Resolution Chamber. The First
Respondent was also keen to underline that he had not been directly involved as a
party to the relevant ‘transfer agreement’, as the said agreement had apparently
been negotiated solely between the Claimant and the Second Respondent.
Moreover, the First Respondent considered that, in the event that it was decided
that no binding agreement existed between the Claimant and the Second
Respondent regarding his transfer to the latter, the Dispute Resolution Chamber
should adjudicate the present matter on the basis of art. 17 of the Regulations.
22.
In this context, the First Respondent pointed out that if the relevant decisionmaking body decided that a valid ‘transfer agreement’ had indeed been
concluded between the Claimant and the Second Respondent, the claim against
him should be declared inadmissible. Furthermore, should the relevant decisionmaking body decide that the present matter is to be adjudicated on the basis of
art. 17 of the Regulations, the First Respondent asked for the claim against him to
be partially accepted and reiterated the amount he had previously stated as
compensation to be paid equally between him and the Second Respondent.
23.
In its final comments dated 29 January 2009, the Second Respondent argued that,
contrary to the statement made by the Claimant by means of which it had claimed
that the First Respondent had not shown any intention to pay compensation for
his breach of contract, a press article previously submitted by the Claimant itself
seemed to confirm that the First Respondent had indeed offered to pay
compensation amounting to the residual value of his contract with the Claimant.
24.
The Second Respondent further claimed that it had not induced the First
Respondent to breach his contract with the Claimant and argued that the content
of the aforementioned press article also seemed to confirm this allegation since
the said article stated that the First Respondent had terminated his contractual
relationship with the Claimant in May 2008, two days before the end of the
championship, whereas the first contact between the First Respondent and the
Second Respondent, as well as the conclusion of the employment contract
between the latter and the First Respondent, had taken place at the end of June
2008. Consequently, no sanction should be imposed on the Second Respondent,
except for the financial compensation it might be asked to pay together with the
First Respondent.
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25.
Furthermore, the Second Respondent refuted the allegation that the amount of
compensation to be paid by it to the Claimant for the player’s change of clubs had
been agreed between the parties in the transfer agreement dated 30 August
2008. In this regard, the Second Respondent pointed out that it had eventually not
signed such transfer agreement.
26.
As for the compensation to be paid for the breach of contract by the First
Respondent, the Second Respondent argued that the First Respondent’s yearly
salary of EUR 700,000 under his previous contract with the Claimant should be
used to calculate the relevant amount of compensation. Finally, the Second
Respondent deemed that the performance bonuses should not be taken into
account while calculating the relevant amount of compensation to be paid to the
Claimant, as they remained entirely hypothetical.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, it took note that the present matter
was officially submitted to FIFA on 16 October 2008 by the Claimant.
Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and 2 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
connection with art. 22 lit. a) of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber (DRC) shall adjudicate on
disputes between clubs and players in relation to the maintenance of contractual
stability where there has been an ITC request and a claim from an interested party
in relation to the said ITC request. As a consequence, the Dispute Resolution
Chamber is the competent body to decide on the present litigation.
3.
Subsequently, the members of the Chamber analysed which edition of the
regulations should be applicable as to the substance of the matter. In this respect,
the Chamber took note, on the one hand, that the relevant contract at the basis of
the present dispute was signed on 7 July 2005 and, on the other hand, that the
claim was officially lodged with FIFA on 16 October 2008. In view of the foregoing,
the Chamber concluded that the current version of the regulations, the FIFA
Regulations on the Status and Transfer of Players (edition 2008), is applicable to
the case at hand as to the substance (cf. art 26 par. 1 and 2 of the Regulations).
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4.
Once its competence and the applicable Regulations were thus established, the
Dispute Resolution Chamber went on to deal with the substance of the matter and
started by acknowledging the above-mentioned facts as well as the
documentation of the submissions contained in the file. In particular, the Chamber
noted that the Claimant and the First Respondent had signed an employment
contract on 12 July 2004, valid from 1 July 2004 until 30 June 2007, i.e. for three
sporting seasons. It also took note that the same parties had agreed to extend
their overall contractual relationship for another two years, i.e. from 1 July 2007
until 30 June 2009, by signing, on 7 July 2005, another document (Avenant au
contract). Equally, the members of the Chamber noted that the First Respondent
had, on 30 June 2008, concluded another employment contract with the Second
Respondent, valid as from the date of signature until 31 May 2010, i.e. for two
sporting seasons.
5.
Furthermore, as a preliminary remark, the Dispute Resolution Chamber found it
important to underline that the First Respondent had expressly recognised that he
had breached his employment contract with the Claimant without just cause and
that he was apparently willing to pay compensation. The foregoing could be easily
deducted from his submissions and, in particular, from the fact that he himself had
put a figure on the amount of compensation that he was prepared to pay to the
Claimant, an amount which, however, was much lower than the sum claimed by
the latter.
6.
In the same way, the Chamber acknowledged that the Second Respondent also
considered that the First Respondent had breached his labour relationship with
the Claimant without just cause and had also articulated an amount of
compensation to be paid to the Claimant for the relevant breach of contract. The
members of the Chamber further underlined that both the First and Second
Respondent deemed that the calculation of the amount of compensation to be
paid for the breach of contract should be based on the residual value of the
employment contract signed on 7 July 2005 and that both of them should be held
jointly and severally liable for such amount. Finally, the DRC noted that the First
Respondent and the Second Respondent both considered that the relevant breach
of contract had not occurred within the protected period and that, consequently,
no sporting sanctions should be imposed on neither of them.
7.
With the above-mentioned facts and considerations in mind, the members of the
Chamber went on to address the arguments raised by the Claimant against the
First and Second Respondent and noted, to that effect, that the first point the
Claimant sought to argue was that the decision taken by the Single Judge of the
Players’ Status Committee on 19 September 2008, to provisionally allow the
Second Respondent to register the First Respondent for it, had not been taken in
conformity with the regulations. In this respect, the Dispute Resolution Chamber
was adamant to point out that it had no power whatsoever to quash or amend
the decision taken by the Single Judge of the Players’ Status Committee. The
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Chamber pointed out that there are no provisions in the Regulations or the
Procedural Rules that would allow such an action. The decision of the Single Judge
was therefore final and binding and the Chamber could only pronounce itself on
the contractual dispute between the parties to the present proceeding which was
now under consideration.
8.
Secondly, the members of the Chamber addressed the question as to whether the
breach of contract had occurred within the protected period. In this respect, it
noted that the ‘Avenant au contract professionnel’, or simply the ‘Avenant au
contrat’, signed on 7 July 2005 by and between the First Respondent and the
Claimant had not only extended their respective contractual relationship but had
also replaced, as of the date of signature, the contractual terms of the previous
agreement signed by and between the same parties on 12 July 2004. In this
regard, the Chamber noted that the wording of the ‘Avenant au contrat’ itself was
unambiguous as it read, inter alia, the following: “Toutes les clauses financières
figurant sur l’avenant n. 1V2 du contrat n. 100075-100107-V2 signé entre les
parties le 12/07/2004 sont annulées et remplacées par les conditions financières et
dispositions suivantes: […]”. In the Chamber’s view, the name that the parties may
have given to the said ‘Avenant au contrat’ was not conclusive by itself. This is,
since the document signed on 7 July 2005 provided for new financial conditions
and a new period of validity it thus constituted a new agreement that the relevant
parties had decided to enter into at the time of its signature and which,
consequently, replaced the previous one.
9.
In view of the foregoing, the Dispute Resolution Chamber could not endorse the
argument of the Claimant according to which the ‘Avenant au contrat’ had merely
extended the validity of the employment contract signed on 12 July 2004, but
rather had to come to the conclusion that the protected period had started as of
the first day of validity of the ‘Avenant au contrat’ concluded between the
Claimant and the First Respondent on 7 July 2005, at a time the latter was already
28 years old. Applying the aforementioned reasoning to the case at hand, the
members of the Chamber agreed that the breach of contract, which can be traced
back to 31 May 2008, occurred outside of the protected period and that,
consequently, no sporting sanctions could possibly be imposed on neither the First
Respondent nor the Second Respondent (cf. art. 17 par. 3 of the Regulations in
connection with no. 7 of the definitions contained in the Regulations).
10.
As to the third argument raised by the Claimant according to which the amount of
compensation should be based on the transfer agreement allegedly concluded at
the end of August 2008 between the Claimant and the Second Respondent, the
Dispute Resolution Chamber posed the question whether such alleged agreement
had validly been concluded by and between the parties. In this connection, the
Chamber found it worthwhile to mention that although the parties, i.e. the
Claimant, the First Respondent and the Second Respondent in a first stage and the
Claimant and the Second Respondent only in a subsequent stage, appeared, on
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the basis of the contents of the parties’ submissions, to have been engaged in
negotiations between 29 and 31 August 2008 over the possible transfer of the First
Respondent to the Second Respondent for a defined amount of money, the
document dated 30 August 2008 and entitled ‘Transfer agreement of S was
eventually never signed by any of the parties. In this respect, the Chamber was of
the firm option that the said agreement was merely a document which could still
be rejected by any of the parties up to the moment it would be formally accepted
in writing. In sum, the Chamber was not prepared to conclude that on the sole
basis of the exchange of correspondence between the Claimant and the Second
Respondent, the latter had accepted that the so-called ‘Transfer agreement’ had
any force or effect in law. On account of the above, the DRC confirmed that no
transfer agreement in connection with the First Respondent’s transfer to the
Second Respondent had been concluded between the parties to the present
dispute.
11.
In continuation, the Chamber found it important to mention that the main
argumentation of the Claimant had revolved around the amounts stated in the
transfer agreement that had allegedly been concluded between the parties on 30
August 2008 and that it had, at no point during the proceeding, mentioned the
actual financial damage it had suffered as a result of the departure of the First
Respondent. As a matter of fact, the Claimant had merely sought to argue that
the amount apparently negotiated in the transfer agreement constituted the
actual damage suffered, without, however, providing any detailed and
documented proof that it had indeed suffered such a damage as a result of the
breach of the contract by the First Respondent and his subsequent replacement in
the team. Equally, the Chamber emphasised that the Claimant had not mentioned
any other expenses that it had invested in the First Respondent or submitted any
other evidence that it had suffered any other additional damages.
12.
Turning its attention to the submissions provided by the First Respondent, the
Dispute Resolution Chamber acknowledged that the First Respondent had, by
means of a letter, notified the Claimant on 31 May 2008 that he considered his
contractual relationship with the later to be terminated (quote) “in application of
art. 17 of the Regulations”. On the basis of the content of the aforementioned
letter and, in particular, of the mention of art. 17 of the Regulations, the Chamber
was satisfied that the First Respondent was fully aware of the potential financial
and/or other consequences that such a unilateral termination of contract could
cause, just as he was aware that his termination of the contract occurred without
just cause. In the present context, the Chamber was thus not asked to confirm
whether a breach had occurred, since such unlawful breach had already been
acknowledged not only by the Claimant but also by the First Respondent and the
Second Respondent, but rather was to consider the consequences of such a breach
for the parties involved and to calculate the appropriate amount of compensation
that the Claimant could possibly be entitled to.
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13.
In turn, the members of the Chamber looked at the considerations of the First
Respondent as to the amount of compensation he should be liable to pay together
with the Second Respondent. In this respect, the DRC acknowledged that the First
Respondent deemed that the compensation payable to the Claimant should
correspond to the remaining value of the contract concluded between him and
the Claimant. In this regard, the Chamber was keen to emphasise that the
underlining principle at the basis of the Regulations was that contracts have to be
respected and that accepting any such arguments put forward by the First
Respondent would amount to a disrespect of the principal of the maintenance of
contractual stability which represents the backbone of the 2001 agreement
concluded between FIFA/UEFA and the European Commission. In the Chamber’s
opinion, giving credit to such argument would allow any party to ‘calculate’ how
much a breach of contract would cost and would not only go against the
aforementioned principle but also against the very rationale of art. 17 of the
Regulations and its non-exhaustive criteria for calculating compensation. In other
words, by allowing a party to walk out of its or his contractual obligations by
paying the remaining value of the relevant contract to the other party would, in
the Chamber’s view, render the principle of contractual stability meaningless.
14.
Equally, and consistently with the above, the Dispute Resolution Chamber also
rejected the argument brought by the Second Respondent according to which the
player’s yearly salary under his previous contract with the Claimant ought to be
used to calculate the relevant amount of compensation it should be jointly asked
to pay to the Claimant.
15.
Turning its attention to the actual amount of compensation to be paid for breach
of contract without just cause, the members of the the Chamber referred to art. 17
of the Regulations and recalled that the said provision provides for a nonexhaustive enumeration of criteria which may be taken into consideration at the
entire discretion of the relevant decision-making body when calculating the
amount of compensation payable. This being established, the Chamber further
held that since it was of the view that the Claimant had not specifically detailed
the amount of damages it had actually suffered as a result of the departure of the
First Respondent, nor had it mentioned any offers it had received from any club
other then the Second Respondent for the transfer of the First Respondent, the
amount of compensation should be established on the basis of art. 17 of the
Regulations. In this respect, the members of the Chamber sought to recall that
each request for compensation has to be assessed on a case-by-case basis taking
into account the specificities and particular circumstances of each case as well as
the specificity of sport.
16.
With those considerations in mind, and as a preliminary remark, the Dispute
Resolution Chamber noted that all the financial obligations provided for in the
contract signed between the Claimant and the First Respondent appeared to have
been fulfilled until the date of the breach of contract, i.e. until 31 May 2008 and
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that this fact was not disputed by any of the parties either. Therefore, the
members of the Chamber noted that the time remaining on the contract that was
breached is of 13 months, i.e. from 1 June 2008 until 30 June 2009. Furthermore,
the Chamber noted that the remuneration due to the First Respondent under the
said contract for the remaining time amounts to EUR 758,333.
17.
In continuation, the Dispute Resolution Chamber agreed that, in addition to the
remaining value of the contract the First Respondent concluded with the Claimant,
the value of the First Respondent’s new contract with the Second Respondent
should also be taken into account. The remuneration under the new contract was,
in the Chamber’s view, a clear indication of the real value of the services rendered
by the First Respondent to the Second Respondent. In this context, the Chamber
was keen to underline that art. 17 par. 1 of the Regulations allows it to take into
consideration both the “existing contract and/or the new contract” in the
calculation of compensation for breach.
18.
In this regard, the members of the Chamber acknowledged that the value of the
new contract signed between the First Respondent and the Second Respondent
for the period spanning from the signature of the new contract until the end of
the previous contract, i.e. 30 June 2009, amounted to EUR 1,200,000. Accordingly,
the Chamber concluded that a first benchmark on which to calculate
compensation ought to be situated between the remaining amount that the
Claimant would have had to pay for the services of the First Respondent had the
contract not been breached, and the amount that the Second Respondent would
eventually have to pay to the First Respondent during that same period of time.
Consequently, the Dispute Resolution Chamber held that this first benchmark
should amount to EUR 980,000 and represented the average figure the Claimant
and the Second Respondent had placed on the value of the services rendered by
the First Respondent to them respectively.
19.
In continuation, the Chamber went on to consider the aspect relating to the
specificity of sport also mentioned in art. 17 of the Regulations and recalled that
such a criterion has repeatedly been referred to by the CAS for the purposes of
calculating the amount of compensation for breach of contract, ensuring that the
decisions taken are not only just and fair legally speaking, but that they also
correspond to the interest and specific needs of the football world’s actors. On
that basis, the members of the Dispute Resolution Chamber unanimously agreed
that an additional amount of compensation should be granted to the Claimant for
the damage it had suffered as a result of the termination of the contract without
just cause by the First Respondent.
20.
As to the elements to be taken into consideration in order to calculate that
additional amount of compensation for damages, the members of the Chamber
firstly considered the time remaining under the contract signed between the
Claimant and the First Respondent on 7 July 2005. In this context, the Chamber
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noted that at the time of its breach, the said contract had still 13 months to run,
representing just above 1/4 of the total duration of the contract that had initially
been signed for four entire sporting seasons, i.e. from the season 2005/2006 until
the end of the season 2008/2009. In other words, the First Respondent had
complied with almost 3/4 of his then existing contract with the Claimant, having
offered his services to the latter, if the first contract was taken into account, since
June 2004. In addition to the above, the Dispute Resolution Chamber was keen to
emphasise that, as stated previously in this decision, the breach had not occurred
within the protected period. Consequently, the members of the Chamber decided
that, in view of the circumstances of the present case and the breach of contract,
an additional amount of EUR 150,000 as compensation for the damages incurred
should be added to the previously mentioned amount of EUR 980,000.
21.
Consequently, on account of all the above-mentioned considerations as well as the
particular circumstances of the instant case, the members of the Chamber decided
that the compensation for breach of contract without just cause amounting to
EUR 1,130,000 payable by the First Respondent would appear fair and
proportionate. Hence, the First Respondent, S, has to pay to the Claimant, L, the
amount of EUR 1,130,000. Moreover, the Chamber held that the Second
Respondent should be jointly and severally liable for the payment of the
aforementioned total amount of compensation (cf. art. 17 par. 2 of the
Regulations).
22.
Furthermore, and for the sake of good order, the Dispute Resolution Chamber
held that the Claimant’s request for sporting sanctions to be imposed on the First
Respondent and the Second Respondent should be dismissed, since the relevant
breach of contract had occurred outside of the protected period.
23.
Equally, and bearing in mind that the First Respondent terminated the
employment contract concluded between himself and the Claimant without just
cause and that the Second Respondent did not provide or specify any reasons on
which he could legitimately base its counter-claim, the members of the Chamber
decided, for the sake of good order, to reject the Second Respond’s counter-claim
in full.
24.
Finally, the members of the Chamber observed that, on the basis of the
submissions of the parties, they had reason to believe that the players’ agent Mr X,
licensed by the C Football Federation, may have played an active part in the First
Respondent’s breach of contract with the Claimant and/or his subsequent signing
with the Second Respondent. Consequently, and on the basis of art. 17 par. 5 and
art. 25 par. 4 of the Regulations in connection with art. 30 par. 3 of the FIFA
Players’ Agents Regulations, it was unanimously decided that the present matter
should be submitted to FIFA’s Disciplinary Committee in order to investigate the
actual role played by Mr X with a view to commencing the appropriate disciplinary
proceedings against the latter.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, L, is partially accepted.
2.
The First Respondent, S, has to pay to the Claimant, L, the amount of EUR
1,130,000, within 30 days as from the date of notification of this decision.
3.
The Second Respondent, T, is jointly and severally liable for the payment as
stipulated in no. 2 above.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
5.
The Claimant, L, is directed to inform the First Respondent, S, and the Second
Respondent, T, immediately and directly of the account number to which the
remittance is to be made and to notify the Dispute Resolution Chamber of every
payment received.
6.
The present matter shall be submitted to FIFA’s Disciplinary Committee in order to
commence disciplinary proceedings against the players’ agent X concerning the
present affair [cf. art. 17 par. 5 and art. 25 par. 4 of the FIFA Regulations on the
Status and Transfer of Players in connection with art. 30 par. 3 of the FIFA Players’
Agents Regulations].
7.
Any further claims lodged by the Claimant, L, are rejected.
*****
Note relating to the motivated decision (legal remedy):
According to article 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
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facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber
Jérôme Valcke
Secretary General
Encl. CAS directives
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