Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 June 2011,
in the following composition:
Geoff Thompson (England), Chairman
Carlos Soto (Chile), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Damir Vrbanović (Croatia), member
on the claim presented by the club
FC P,
as Claimant
against the player
E,
as Respondent
and the club
X,
as Intervening Party
regarding a contractual dispute arisen between the parties
I.
Facts of the case
1.
On 5 February 2009, the country A club, FC P (hereinafter: the Claimant), signed a
labour contract with Mr M, the father (hereinafter: the father) of the player, E
(hereinafter: the Respondent), valid until 1 December 2011. According to clause
3.3 of this contract, the father gave his consent, on behalf of his son, to the
Claimant to sign an employment contract with the Respondent.
2.
On 2 March 2009, the Claimant and Respondent, born on 10 May 1993, concluded
an employment contract valid from the date of its signature until
1 December 2011.
3.
According to art. 6 of the contract in conjunction with its appendix N 1, the
Respondent shall receive a monthly salary of USD 1,000 to be paid within five
bank days of the following month (cf. clauses 1.1 and 1.2 of the appendix). In
addition, according to the clause 1.3 of said appendix, the Respondent “is
rewarding by internal rules”.
4.
On 12 March 2009, the Claimant and the country Z club, Club Y (hereinafter: the
Club Y), agreed to the transfer of the Respondent for the transfer amount of USD
54,500, including all education and solidarity payments, to be paid by the
Claimant as follows:
a)
USD 5,000 to the bank account of the “Z Football Federation” up to the next
day of the signing of the present agreement (cf. clause 6 of the agreement);
b)
USD 49,000 to the bank account of the Club Y after an agreement signed
between the Claimant and the Respondent’s parents.
5.
On 20 March 2009, the Z Football Federation (ZFA) issued an International
Transfer Certificate (hereinafter: ITC) for the Respondent in favour of the A
Football Federation (AFF).
6.
By means of a letter dated 1 May 2009, the Claimant invited the father and the
Club Y club’s president to country A.
7.
On 27 November 2009, the Z Football Federation requested that the Claimant
shall release the Respondent for international duty at the Tournament 2010
(hereinafter: Tournament 2010) – Tournament that lasted from the 10 until 31
January 2010. Equally, the Z Football Association promised the A Football
Federation to ensure that the Respondent would return to the Claimant after the
Tournament on 1 February 2010.
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8.
The Claimant complied with this request and allowed the Respondent to return to
country Z to participate at the tournament in country H.
9.
On 10 February 2010, the Club Y requested that the Respondent be allowed to
attend 10 days of football trials in Europe. The Club Y stated that it would be in
the interest of the career of the player to attend these trials. The Claimant
complied with its request and allowed the Respondent to participate in the
European trials.
10.
On 23 February 2010, the Club Y informed the Claimant that the latter was in
breach of the FIFA Regulations on the Status and Transfer of Players (hereinafter:
the Regulations), by allegedly making an underage player sign a professional
playing contract.
11.
On 25 February 2010, the Respondent filed a complaint in front of the Z Football
Federation requesting that the Claimant was in breach of contract for partial nonpayment of salary and certain performance bonuses provided for in the contract.
In this letter, he stated that he had no intention to return to the Claimant since
the latter did not comply with its contractual obligations. In particular, the
Respondent complained about alleged outstanding salaries and bonuses which
were provided for in the contract and asserted having received USD 2,000 as
monthly salary for the first three months and only USD 1,000 per month for the
rest duration of the contract.
12.
In response, the Claimant referred to the appendix N 1 of the employment
contract, which stipulates a monthly salary of USD 1,000 for the Respondent, and
submitted a payment receipt, according to which the Respondent received USD
1,000 for February 2009, USD 1,500 for each month of March, April, May 2009,
and USD 1,000 for each month of June, July, August, September and October
2009, in addition to 16 bonuses of USD 500 each and one bonus of USD 2,000,
received from 22 March 2009 until 1 November 2009.
13.
Moreover, the Claimant stated that the Respondent never claimed the alleged
outstanding salaries, neither in front of the Claimant, nor of FIFA, but only in
front of the Z Football Federation.
14.
On 7 March 2010, the Respondent was registered at the Football-Association C
(FAC) to play for the country C club, Club X (hereinafter: the Intervening Party), as
an amateur.
15.
On 31 March 2010, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract without just cause, stating that the latter did
not return to the Claimant.
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16.
Therefore, the Claimant requests a financial compensation for breach of contract
without just cause in the total amount of USD 35,291.48 as well as 1,000,000, plus
5% annual interest on this amount, based on the objective criteria of art. 17 of
the Regulations. In this respect, the Claimant considered the following as
objective criteria:
a)
b)
the remaining value of the contract, as follows:
i.
composition of the rest value of the contract amounting to USD
9,131.48, made up of USD 1,000 per month from the date of breach
of the contract, i.e. 25 February 2010, until the end of the contract,
i.e. 1 December 2010, thus USD 9,000 as from 1 March to 1 December
2010 (9 months x USD 1,000), as well as USD 131.48 (USD 1,000 x 12
months / 365 days = USD 32.87 per day x 4 days in February);
ii.
USD 500 for each win the club achieves during the course of the
contract since the Respondent would have received the bonus if he
had fulfilled his contractual obligations with the Claimant.
the costs of acquisition of the Respondent amortised over the course of the
contract amounting to USD 26,160, as follows:
i.
the contract was valid as from 2 March 2009 and the transfer fee paid
to the player’s former club amounted to USD 54,500;
ii.
the Respondent breached the contract on 25 February 2010;
iii.
the contract was set to expire on 1 December 2010;
iv.
the Respondent was to be with the Claimant for 639 days, but left
the Claimant 310 days before his contract expired and thus the
amortised amount of the transfer compensation amounts to
USD 26,160.
c)
the contract was breached within the protected period, i.e. in its first year;
d)
the lost opportunity to transfer the Respondent: according to the Claimant,
the approximate valuation of the Respondent is 1,000,000, since the country
E club, FC T, was willing to pay this amount for the transfer of the player
during his participation in the 2010 Tournament;
e)
a compensation due to the sporting loss equivalent to at least six months of
the Respondent’s average monthly salary;
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f)
5% interest per annum on the total amount due from the date on which the
breach occurred, as well as legal costs.
17.
Additionally, the Claimant requests sporting sanctions to be imposed on the
Respondent, i.e. requests that the Respondent shall be banned for 2 registration
periods.
18.
Also, the Claimant stated that the player joined the Intervening Party, and that
the latter should be held jointly and severally liable for any damages suffered by
the Claimant.
19.
Finally, the Claimant stated that the Regulations shall be applicable to the case at
hand, and subsidiary the country A law since the contract operated within country
A.
20.
In his arguments, the Claimant stated that the father signed a contract giving his
consent in order to allow the Respondent to sign an employment contract with
the Claimant. Consequently, on 2 March 2009, the Respondent concluded the
employment contract and the Z Football Federation issued the relevant ITC. After
the conclusion of the employment contract, the Respondent successfully trained
and played for the Claimant – allegedly – without complaint in the months
following.
21.
However, after the conclusion of country Z’s involvement in the Tournament 2010
Tournament, the Respondent did not return to the Claimant but instead stayed in
country Z with his old club, Club Y, despite having no contractual ties to this club.
22.
Furthermore, after the Claimant had allowed the Respondent to participate in
European trials, the Claimant asked the Respondent and the Club Y to have the
Respondent return to the Claimant, however, its request was allegedly not
properly acknowledged, nor complied with. Once again, the Respondent did not
return to the Claimant.
23.
Moreover, according to the Claimant, on 26 February 2010, it started to dispute
with the Club Y regarding the Respondent’s ITC due to different data introduced
by both parties in the Transfer Matching System (TMS).
24.
In his reply, the Respondent rejected the Claimant’s claim and emphasised that he
was born on 10 May 1993 and therefore, he was only 15 years old in the period
when the contracts have allegedly been signed, reason for which the validity of
the contracts has to be evaluated in the light of art. 19 of the Regulations.
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25.
Furthermore, the Respondent rejects the argument that his father signed the first
contract submitted by the Claimant, as well as that he gave his parental consent
on 5 February 2009, since his father and the President of the country Z club, Club
Y, booked their flight tickets to country A on 30 April 2009 for the flight of 2 May
2009.
26.
In addition, the Claimant invited the father as well as the President of Club Y on 1
May 2009 to travel to country A. The relevant e-ticket states: “Departure from
country Z on 2 May 2009 – departure from country A on 31 May 2009”.
27.
Furthermore, according to the Respondent, there is no reason why his father and
he should have signed different contracts on different dates. It is necessary that,
in case of signing a minor, both the minor and the parent(s) sign the same
document at the same time, in order to give the minor the safety and guidance.
28.
In this context, the Respondent states that only the second contract, i.e. his
employment contract, has to be taken into account. However, on one hand, and
taking into consideration that the employment contract had been signed by a
15 year old – a minor player – without parental consent, the Respondent deems
that said contract is null and void. On the other hand, the Respondent contested
the authenticity of his signature on the employment contract, in particular,
comparing his signature to the ones borne in the power of attorney, authorising
his lawyer to act on his behalf, the one borne on the Appendix N 1 and the ones
on the payment receipts.
29.
However, the Respondent agrees with the Claimant on the fact that his ITC was
issued and consequently his registration took place in March 2009. Nevertheless,
according to the Respondent, a void contract has been registered and, as a
consequence, said contract cannot be breached by the Respondent.
30.
In this regard, the Respondent remarked that his father did not sign the
Appendix N 1, where the financial terms of his employment contract are
stipulated, which is an essential part of the employment contract and therefore
should be subject to parental consent.
31.
The Respondent recognised having played for the Claimant and having received
monies for rendering his services, but underlined that the employment contract
remains invalid since, in accordance with art. 19 of the Regulations, international
transfers of minors under 18 years of age are not permitted. In casu, exceptions
do not apply, since the prerequisites for such exemptions are not met: at the time
of the transfer, the Respondent was neither 16 years old, nor is a transfer from
country Z to country A a transfer within the EU.
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32.
Additionally, the Respondent states that even though the Claimant organised a
work permit for his father, it had provided him with work; therefore, as planned,
he left country A after a short period of time. The Respondent stressed that his
father had never worked in country A and went to country A for reasons not
linked to football. In this context, it is clear that the Respondent only went to
country A to pursue his football career and that his father followed him.
33.
As a consequence, the Respondent deems that both the transfer agreement and
his employment contract are null and void in the light of art. 19 of the
Regulations. In that regard, he referred to the jurisprudence of the Court of
Arbitration for Sport (CAS) pertaining to the case [of the C club] “C”, by means of
which it was stipulated that any effort to undermine the spirit of art. 19 of the
Regulations by trying to create a scenario in which the player follows the parents,
whereas in fact just the opposite happens, is abusive and cannot be
acknowledged by football authorities.
34.
Moreover, the Respondent asserted that while playing with the Claimant he lived
alone in an apartment and received no school education. For these reasons, in
addition to some irregularities in the payment of his salaries, the Respondent
decided to leave the Claimant to go home and did not wish to return to the
Claimant.
35.
The legal representative of the Respondent stated that he is not aware, as it is
alleged in the claim, whether the Respondent entered into a new labour
relationship with Club X. However, the Respondent confirmed having participated
in trials with FC T, without, nevertheless, having received any offer from the
latter, reason for which he deems that, if any compensation should be granted, a
transfer value as stated in the internet cannot be taken into account.
36.
Finally, the Respondent emphasised that the Claimant did not fulfil its contractual
obligations towards him. Despite the fact that the Appendix N 1 seems to
stipulate a monthly salary of USD 1,000, the payment receipts submitted by the
Claimant show that, as from April to June 2009, the Respondent received the
orally agreed basic salary of USD 1,500. For this reason, the Respondent deems it
contradictory that he de facto received a monthly salary of USD 1,500 if the
Claimant would only have to pay USD 1,000.
37.
To conclude, the Respondent asserted that disciplinary sanctions should not be
imposed on him but on the Claimant, which signed an invalid contract in clear
contradiction to art. 19 of the Regulations.
38.
In its comments to the claim, the Intervening Party argued that it was not
responsible for the breach of contract. Moreover, it asserted having “affiliated”
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the minor player to reunite with his father who was worked for a mining
company in country C, where the Intervening Party is based, in country C.
39.
In its replica, the Claimant asserted that the father’s signature is borne on all the
pages of the latter’s contract and the date of signature is clearly indicated.
Moreover, it should be noted that nowadays, with the technology available, it is
possible to draft documents and sign contracts without having to be physically
present at the time when a contract is issued.
40.
Additionally, the e-flight ticket submitted by the Respondent proves that the
father was in country A on 2 May 2009, however, does not demonstrate whether
the father was in country A before that date.
41.
Also, the Claimant alleged that the Respondent did not provide any evidence to
prove that his signature in the employment contract is falsified.
42.
With regard to the parental consent, according to the Claimant, it is not necessary
that in the case of a minor, both the minor and the parent must sign the same
document at the same time for the document to be valid. Furthermore, the
consent form does not have to be a part of the employment contract.
43.
With regard to the Respondent’s allegation that the Appendix N 1 should bear
the signature of the father, the Claimant deemed that it is only necessary that the
parties have read and understood the documents and provided at least one
signature, normally at the end of the contract.
44.
Moreover, in respect of the Respondent’s allegation that his father only gave his
consent in May and not in February 2009, the Claimant deemed that even
assuming such situation, the father’s consent would have been given at a later
stage, during the course of the Respondent’s employment contract, since the
latter continued playing for the Claimant and accepted to receive a salary in
exchange thereof.
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45.
In addition, the Claimant stated that the Respondent moved to country A only
after his father had been given a work permit and found an employment. In this
respect, the Respondent could not prove that his father did not find employment
in country A. According to the Claimant, art. 19 par. 2 lit. b) of the Regulations
does not oblige the player’s parents to move to the country in which the new club
is located for reasons not related to football and stay there. The aforesaid article
only states that the player’s parents must be in the country of the new club at one
point in time.
46.
With regard to the transfer of a minor player, the Claimant also underlined that
neither Club Y, nor the Respondent filed a complaint in front of FIFA during the
player’s transfer from country Z to country A, but only now, when the Respondent
is willing to breach his contract unilaterally, he is invoking the provisions of art. 19
of the Regulations, which were previously ignored during the aforementioned
transfer.
47.
In this respect, the Claimant does not wish that the Respondent leaves its club due
to an international transfer, since the Claimant would contravene the provisions
of art. 19 of the Regulations.
48.
Finally, the Claimant stated that the player did not provide any evidence that he
did not receive any education during his stay in country A.
49.
To conclude, the Claimant remarked that the Respondent, in his response to the
claim, acknowledged to have been overpaid, since he received the verbally agreed
amount of USD 1,500 from April to June 2009 instead of his contractual monthly
salary of USD 1,000. The Claimant thus questions the fact that it is very unlikely to
determine what had been verbally agreed by the parties since it could have been
a bonus of USD 500 or a salary of USD 1,500 only from April to June 2009. In any
case, if the Respondent is of the opinion that no valid employment contract has
been concluded between the parties, the Claimant deems that the Respondent
should not be entitled to receive any monies. However, the Respondent claims to
be paid for the services he rendered with the Claimant.
50.
On 1 August 2010, the Football Federation C. requested the approval of the
Subcommittee of the Players’ Status Committee to register the minor player prior
to file a request for the ITC of the Respondent.
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51.
In its final position, with regard to the allegations of the Claimant concerning the
signature of the first contract using technological developments, the Respondent
stated that his father has neither access to fax, nor an e-mail in country Z.
Moreover, the Claimant did not allege when and how his father signed his
contract. However, if his father had signed his contract before his visit to country
A, the Respondent does not understand that the Claimant had waited until 5 May
2009 to request via TMS his ITC.
52.
Furthermore, with regard to the parental consent, the Respondent asserted that
the reason of the parental consent to be included in the same document signed
by the minor is to allow the parent to know what the minor is signing, contrari[o]
sensu, so as to avoid that the minor signs something different.
53.
According to the Respondent, the undisputed fact that his employment contract
was executed for a certain time by both parties, cannot cure the invalidity of the
contract and the forbidden transfer of the minor.
54.
In this context, the Respondent cited the jurisprudence of FIFA and CAS regarding
[the country P player] “N“ and [the D club] “D”, according to which any transfer
of minor that is not fully in line with the principles laid down in art. 19 of the
Regulations cannot be accepted, including any effort to create the preconditions
provided for in the said article.
55.
In addition, the Respondent remarked that he is not aware that his father found
employment in country A; otherwise he would have stayed there. In this respect,
the Respondent stated that the Claimant would have to prove that his father
worked in country A prior to the move of his son and that his job was not to
circumvent the transfer of the minor. Moreover, according to the Respondent, it is
not his burden to prove that he neither received school education, nor was looked
after by the Claimant.
56.
With regard to the Claimant’s allegations concerning the overpayments to the
Respondent, according to the latter, no club would overpay a player and, in this
respect, the Claimant should have known the financial terms agreed with the
Respondent instead of speculating whether the overpaid amount corresponded to
an oral agreement between the parties or to bonuses.
57.
Moreover, the Respondent asks the DRC to declare that he is free to be registered
for other clubs “without any claims for compensation on the side of [the
Claimant]”.
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58.
The Respondent stated not to have found any new employment with new club. In
this respect, the player clarified that the Intervening Party has never referred to
any employment contract, but rather stated that his father appears to work in the
surroundings where said club is based.
59.
To conclude, the A Football Federation informed FIFA that it registered the player
with the Claimant on 20 March 2009 under the exception lit. a) of art. 19 par. 2 of
the Regulations, i.e. the player’s parents move to the country in which the new
club is located for reasons not linked to football.
60.
On 6 November 2010, the country C club, Club X, sent FIFA a copy of the player’s
license (“Licence B Junior”), according to which the player was registered with it
as an amateur as of 7 March 2010.
*****
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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 31 March 2010. Consequently, the 2008 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter
at hand (cf. art. 21 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 b) of the Regulations on the Status and Transfer of
Players (edition 2010) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a club and a player.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it referred, on the one hand, to art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2010 and 2009), and, on the other hand, to the fact that the present
claim was lodged on 31 March 2010, but that the relevant employment contract
at the basis of the dispute was signed on 2 March 2009. The Dispute Resolution
Chamber concluded that the 2008 edition of the Regulations on the Status and
Transfer of Players (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. The members
of the Chamber started by acknowledging the documentation contained in the
file, and in view of the circumstances of the case, focused on the question
whether the employment contract concluded between the Claimant and the
Respondent on 2 March 2009 is valid or is to be considered as null and void.
5.
First of all, Dispute Resolution Chamber took due note of the Claimant’s position,
according to which the employment contract is valid, since, on the one hand, it is
not a requirement that a minor and his parent must sign the same document at
the same time for it to be valid, and, on the other hand, the Respondent executed
this contract allegedly without any complaint during months.
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6.
In this respect, the members of the Chamber took note of the Respondent’s
objections, according to which the employment contract concluded between him
and the Claimant should be considered as null and void, since the latter, a 15 year
old player – i.e. a minor player – at the moment of the signature of the
employment contract, signed an employment contract without parental consent,
and therefore never considered himself contractually bound to the Claimant.
7.
In this context, the Chamber recalled that the Claimant and the father of the
Respondent had first concluded a “labour contract”, the father’s contract, on
5 February 2009, by means of which the latter had given his consent to the
Claimant so that his son could sign a contract and be able to play with the
Claimant.
8.
The Chamber, therefore, analysed determined that the parental consent was
given in advance by the Respondent’s father and that on 2 March 2009 the
Respondent signed an employment contract with the Claimant. The Dispute
Resolution Chamber yet recognised that the consent of the Respondent’s father
and the conclusion of the employment contract between the Claimant and the
Respondent did not occur at the same time, but emphasised that in accordance
with the legal principle of legal guardianship, it is not a necessary requirement for
the valid conclusion of an employment contract.
9.
Furthermore, the Chamber took due note that the Respondent had contested the
authenticity of his signature on the second contract and explained that his
signature had been falsified and that it was impossible that his father gave his
parental consent on 5 February 2009, since he came to country A with the
President of the Club Y on 2 May 2009.
10.
In this respect, the Chamber emphasized that, as general rule, it is not the
competent body to decide upon matters of criminal law, such as the alleged
falsification of a signature or a document, but that such affairs rather fall into the
jurisdiction of the competent national criminal authority.
11.
The Chamber was, first of all, eager to recall the basic principle of burden of
proof, according to which a party claiming a right on the basis of an alleged fact
shall carry said burden (cf. art. 12 par. 3 of the Procedural Rules).
12.
Considering the above arguments raised by the Respondent, the Dispute
Resolution Chamber concluded that these statements do not speak against the
validity of the contract. In fact, the Chamber held that the contract appears to
have been duly signed by and between the Claimant and the Respondent.
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13.
In view of all of the above, and based on the documentation currently at its
disposal, the Chamber unanimously came to the conclusion that, unless proven
otherwise by the competent national criminal authority, for the moment, the
employment contract can be considered valid. In particular, the Chamber
emphasised that the Respondent was not able to prove that the signature on the
employment contract was not his own (cf. art. 12 par. 3 of the Procedural Rules).
As a result, the Chamber concluded that the employment contract signed on
2 March 2009 will be taken into account for the present dispute and went on to
establish its validity.
14.
Finally, for the sake of completeness, the members of the Chamber highlighted
that the Regulations in its art. 18 par. 2 in fine stipulate that “players under age
of 18 may not sign a professional contract for a term longer than three years” and
that “[a]ny clause referring to a longer period shall not be recognised”. In this
sense, the Chamber stressed that the only binding provision in the Regulations
relating to [employment] contracts between a minor professional player and a
club is contained in this article and there are no such provisions in the Regulations
concerning the form to be respected in the conclusion of employment contracts
with minor players.
15.
Additionally, the Dispute Resolution Chamber also recalled the objection of the
Respondent, according to which the Respondent was a minor at the moment of
the signature of the employment contract with the Claimant, reason for which
the validity of the contract has to be evaluated in the light of art. 19 of the
Regulations, which governs the protection of minors. In particular, the Chamber
noted that the Respondent underlined that the employment contract remained
invalid since, in accordance with art. 19 of the Regulations, international transfers
of minors under 18 years of age are not permitted. Furthermore, the members of
the Chamber also noted that, in casu, exceptions do not apply, since the
prerequisites for such exemptions were not met since at the time of the transfer,
the Respondent was neither 16 years old, nor was the transfer from country Z to
country A a transfer within the European Union (EU).
16.
Moreover, the DRC also acknowledged that the Respondent stated that even
though the Claimant ensured a work permit for his father, the Claimant had not
provided an employment for him. The Chamber, therefore, noted that it was
highlighted by the Respondent that his father had never worked in country A and
did not move to country A for reasons linked to football and that the only reason
the Respondent moved to country A was to pursue his football career and that his
father joined. The DRC consequently took note that the Respondent deems that
both the transfer agreement and the employment contract are null and void in
the light of art. 19 of the Regulations, and that he referred to the jurisprudence
of CAS in that regard.
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17.
With regard to this argument, the DRC emphasised that the provisions regarding
the protection of minors (i.e. art. 19 of the Regulations) do not hinder the
conclusion of an employment contract between a minor player and a club, but
only the international transfer of such player, i.e. the issuance of the player’s ITC.
18.
The DRC, however, took note of the fact that the player’s ITC was requested by
the player’s new association and issued by the player’s former association before
the player had reached the age of 18. In this respect, the Dispute Resolution
Chamber underlined that the questions related to the issuance of the player’s ITC,
in particular the possible disrespect of the provisions pertaining to the protection
of minors, may lead to possible sanctions. Therefore, the Chamber decided, ex
officio, that the matter shall be referred to the FIFA Players’ Status Committee for
consideration and possible measures (cf. art. 19 par. 5 of the Regulations).
19.
Notwithstanding the above, the Chamber deemed that it had to be established
whether the parties have concluded a valid employment contract.
20.
In this context, the members of the Chamber noted that although the Respondent
had contested the validity of the employment contract signed with the Claimant,
stating that said contract had been signed by a minor without parental consent,
he recognised having played for the Claimant and having received some monies
for rendering his services.
21.
The Chamber equally noted that the Respondent had executed the contract
during an entire year by playing for the Claimant and receiving remuneration in
return. The Dispute Resolution Chamber highlighted that by his behaviour the
Respondent implicitly recognised the validity of the employment contract.
22.
In this respect, the Chamber emphasised that if the Respondent executed the
employment contract during the course of a year but only after a year claims that
the contract was null and void, this is a clear abuse of rights (“venire contra
factum proprium”) by the Respondent.
23.
Consequently, and based on all of the above, the members of the Chamber
unanimously concluded that the employment contract signed between the
Claimant and Respondent was valid and that the Claimant and Respondent were
therefore contractually bound due to a valid employment contract.
24.
Subsequently, the members of the Chamber focused on the next question of
whether the Respondent had acted in breach of the employment contract and, if
so, it would be necessary to determine the financial and/or sporting consequences
for breach of contract.
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25.
To that regard, the members of the Chamber deemed appropriate to gather an
overview of the events leading to the present dispute.
26.
In this respect, the Chamber first of all stated that it was uncontested by the
parties that the Respondent’s salaries were duly paid by the Claimant.
27.
The Chamber then had to deliberate whether the Respondent had been
authorised to leave or had any other just cause to leave the Claimant prematurely
during the course of the employment contract.
28.
In this respect, the Chamber recalled that uncontestably, the Respondent had
been authorised by the Claimant to leave the first time at the end of December
2009 to join the representative team of the Z Football Federation in order to
participate in the Final Tournament of 2010, that lasted from 10 until 31 January
2010. In addition, it was uncontested that the Respondent was authorised to leave
at the beginning of February 2010 in order to attend football trials in Europe for
ten days, effective as of Monday 15 February 2010. Finally, it was uncontested by
the Respondent that he did not return to the Claimant without any authorisation
from the side of the latter as of the end of February 2010, i.e. 25 February 2010.
29.
In view of the above, the Chamber noted that in accordance with art. 12 par. 3 of
the Procedural Rules, the Respondent did not present any evidence to corroborate
that either his non-return to Claimant had been authorised by the latter or that
he had just cause to leave the Claimant in February 2010.
30.
On account of the above, the Chamber concluded that the Respondent was
contractually bound to the Claimant when he left the latter. Furthermore, the
Chamber deemed that the Respondent could not provide any evidence which
would justify his leave. Therefore, the members of the Chamber concluded that
the Respondent could not provide any proof which would justify his non-return to
the Claimant on 25 February 2010 and thus the Respondent’s behaviour is to be
considered as an unjustified breach of the employment contract by the
Respondent.
31.
Having established that the Respondent had breached the employment contract
with the Claimant without just cause, the Chamber turned to the question
whether the Respondent is accountable for compensation for breach of contract
and if sporting sanctions shall be applied on him for breach of contract without
just cause.
32.
On account of the above-mentioned conclusion, the Chamber had to address the
issue of the consequences for unjustified breach of contract, in accordance with
art. 17 of the Regulations.
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33.
In continuation, the members of the Chamber considered that a careful
reading of the applicable provision, i.e. art. 17 par. 1 of the Regulations
provides the key to assess the amount of compensation due by the
Respondent to the Claimant.
34.
The Chamber clarified that the criteria listed therein are, however, not
exhaustive and that each request for compensation for breach of contract has
to be assessed on a case-by-case basis.
35.
According to art. 17 par. 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
Respondent under the existing contract and/or the new contract, the time
remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected
period.
36.
In application of the relevant provision, the Chamber held that it first of all
had to clarify as to whether the pertinent employment contract signed
between the Claimant and Respondent contains 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.
37.
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 set out in art. 17 par. 1 of the
Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable. Therefore, other objective
criteria may be taken into account at the discretion of the deciding body.
38.
On this basis, the members of the Chamber once more highlighted that the
early termination of the employment contract occurred shortly after the entry
into force of such employment contract. The Chamber deemed that it should
consider this fact in determining the amount of compensation to be paid by
the Respondent.
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39.
Equally, and in order to evaluate the compensation to be paid by the
Respondent, the members of the Chamber took into account inter alia, in line
with art. 17 par. 1 of the Regulations, the remuneration due to the Claimant
in accordance with the employment contract as well as the time remaining on
the employment contract, as well as the professional situation of the
Respondent after the early termination occurred.
40.
In this context, the Chamber first focused its analysis on the amount of
compensation for the unjustified breach of contract due by the Respondent to the
Claimant and examined the objective criteria listed in art. 17 par. 1 of the
Regulations. According to this provision, these criteria shall include, 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 and/or the
new contract, 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 the protected period.
41.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment contract
until 1 December 2011.
42.
On the other hand, the Chamber took into account the request for compensation
submitted by the Claimant, was composed as follows:
43.
a)
compensation for the rest value of the contract amounting to USD 9,131.48
plus any amount earned for win bonuses;
b)
the amortised amount of the transfer compensation paid to the
Respondent’s former club, i.e. USD 26,160;
c)
an amount of 1,000,000 for the lost prospective transfer compensation.
In this respect, the members of the Chamber noted that although the
employment contract was valid until 1 December 2011, the Claimant only claimed
the remaining value of the contract until 1 December 2010 in the amount of
USD 9,131.48 (four days of salary in February 2010 and nine months of salary from
March until December 2010).
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44.
The members of the Chamber then turned to the essential criterion relating to the
fees and expenses paid by the Claimant for the acquisition of the Respondent’s
services in so far as these have not yet been amortised over the term of the
relevant contract. The Chamber recalled that a transfer compensation of
USD 54,500 had been paid by the Claimant to the Club Y for the Respondent’s
transfer, documentation of which has been presented by the Claimant. According
to article 17 par. 1 of the Regulations, this amount shall be amortised over the
term of the relevant employment contract. As stated above, the Respondent was
still bound to the Claimant by twenty-one months and four days of contract when
he terminated the relevant employment contract, which was signed by the parties
to remain contractually bound during a total of thirty-three months. On the other
hand, as already stated, the DRC highlighted that the Claimant only claimed the
costs of the amortised transfer compensation over a period of time until 1
December 2010, i.e. for nine more months, in the amount of USD 26,160.
45.
Furthermore, the Chamber emphasised that the alleged amount of 1,000,000 for
the services of the Respondent by another club (in casu, FC T) cannot be taken
into consideration as the Claimant failed to provide FIFA with any evidence about
a transfer offer from FC T. In this respect, the deciding body referred to the legal
principle of the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
46.
In view of all the above, the members of the Chamber came unanimously to the
conclusion that the amount of compensation for breach of contract without just
cause to be paid by the Respondent to the Claimant is EUR 35,300, which has
considered reasonable and justified as compensation for breach of contract taking
into consideration the specificities of the case at hand.
47.
Furthermore, the Chamber decided that in accordance with art. 17 par. 2 of the
Regulations, the new club of the Respondent, i.e. Club X, shall be deemed jointly
and severally liable for the payment of the amount of compensation the
Respondent has to pay.
48.
Subsequently, the members of the Chamber turned their attention to the
Claimant’s request for sporting sanctions to be imposed on the Respondent. In
this respect, the Chamber held that such sanctions can only be imposed on a
player found to be in breach of contract during the protected period (cf. art. 17
par. 3 of the Regulations).
In this context, the Chamber referred to point 7 of the Definitions of the
Regulations, according to which the protected period is “a period of three entire
seasons or three years, whichever comes first, following the entry into force of a
contract, if such contract was concluded prior to the 28th birthday of the
professional…”.
49.
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50.
The Chamber held that on 2 March 2009, when the Respondent signed his
employment contract with the Claimant, the Respondent was, according to said
contract, 15 years of age. Moreover, the breach of contract occurred on
25 February 2010, when the Respondent did not return to the Claimant, thus
before the lapse of three years from concluding the contract with the Claimant.
51.
In view of the above, the Chamber concluded that the Respondent breached the
employment contract with the Claimant without just cause during the protected
period. As a consequence, sporting sanctions shall be imposed on the Respondent.
52.
To this end, the Chamber referred to the contents of art. 17 par. 3 of the
Regulations stipulating the sporting sanctions for breach of contract during the
protected period as “a four-month restriction on playing in official matches. In
the case of aggravating circumstances, the restriction shall last six months”.
53.
With regard to the quoted provision, the Chamber emphasised that a suspension
of four months on a player’s eligibility to participate in official matches is the
minimal sporting sanction that can be imposed for breach of contract during the
protected period. This sanction, according to the explicit wording of the relevant
provision, can be extended in case of aggravating circumstances. In other words,
the Regulations intend to guarantee a restriction on the player’s eligibility of four
months as the minimal sanction. Therefore, the relevant provision does not
provide for a possibility to the deciding body to reduce the sanction under the
fixed minimum duration in case of mitigating circumstances.
54.
The Chamber held that it could not find any aggravating circumstances which
would allow a restriction higher than four months of the Respondent’s eligibility
to play in official matches. The deciding authority therefore decided that a
restriction of four months on the Respondent’s eligibility to play in official
matches shall be imposed. This sanction shall take effect from the start of the
season of the Respondent’s current club following the notification of the present
decision.
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55.
As a consequence to all of the above, the Dispute Resolution Chamber decided
that the Respondent has to pay to the Claimant the sum of USD 35,300 as
compensation for the unjustified breach of his employment contract during the
protected period. In this respect, the Dispute Resolution Chamber also determined
that Club X is jointly and severally liable for the payment of the aforementioned
amount to the Claimant in accordance with art. 17 par. 2 of the Regulations.
Equally, the Chamber decided that a restriction of four months on the
Respondent’s eligibility to play in official matches shall be imposed.
56.
The request of the Claimant that the costs of the proceedings shall be allocated to
the Respondent is rejected as the proceedings in front of the Dispute Resolution
Chamber relating to disputes between clubs and players in relation to the
maintenance of contractual stability are free of charge (cf. art. 25 par. 2 of the
Regulations and art. 18 par. 2 of the Procedural Rules).
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, FC P, is partially accepted.
2.
The player, E, is found to have terminated the employment contract with FC P
without just cause.
3.
The Respondent, E, has to pay compensation in the amount of USD 35,300 to the
Claimant, FC P, within 30 days of notification of the present decision.
4.
The Club X, is jointly and severally liable for the payment of the aforementioned
compensation.
5.
If the aforementioned amount is not paid within the aforementioned deadline,
an interest rate of 5% per annum will apply as of expiry of the fixed time limit
and the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and a formal decision.
6.
The Claimant, FC P, is directed to inform the Respondent, E, and the Intervening
party, Club X, 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.
7.
A restriction of four months on his eligibility to play in official matches is imposed
on the Respondent, E. This sanction shall take effect from the start of the next
season of the Respondent’s current club following the notification of the present
decision.
8.
Any further request filed by the Claimant, FC P, is rejected.
9.
The present file shall be forwarded to the Players’ Status Committee for
consideration regarding the circumstances of the issuance of the International
Transfer Certificate for the player.
*****
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Notification relating to the motivated decision (legal remedy):
According to art. 63 par. 1 of the FIFA Statutes this decision may be appealed before
the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the
CAS directly within 21 days of receiving notification of this decision and has to contain
all elements in accordance with point 2 of the directives issued by the CAS, copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for the filing of the statement of appeal, the appellant shall file with the CAS a brief
stating the facts and legal arguments giving rise to the appeal (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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