Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 June 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Mohamed Mecherara (Algeria), member
on the claim presented by the club
S FC,
as Claimant
against the player
Y,
as Respondent 1
and against the club
B,
as Respondent 2
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 14 May 2008, the player Y (hereinafter: the Respondent 1), born on 20 July 1975, and
the club S (hereinafter: the Claimant), signed an employment contract (“Private
Contract”) valid as from 1 July 2008 until 30 June 2010. According to the contract
concluded between the parties, the Respondent 1 was entitled to receive a yearly salary
of EUR 91,200 for the first year and EUR 110,000 for the second year, different
performance bonuses and a sign on bonus of EUR 168,800.
2.
Another employment contract (“Professional Player’s Contract”) dated 2 July 2008 and
valid as from that same date until 30 June 2010, was signed between the Respondent 1
and the Claimant. This contract was registered at the E Football Federation (EFF) on 7 July
2008. According to the contract concluded between the parties, the Respondent 1 was
entitled to receive a monthly salary of EUR 885.32, the amount of EUR 226,903.52
(payable in 4 equal instalments each amounting to EUR 25,380.71 on 30 September and
30 December 2008 and 28 February and 30 May 2009, as well as 4 equal instalments each
amounting to EUR 31,345.17 payable on 30 September and 30 December 2009 and 28
February and 30 May 2010) and different performance bonuses.
3.
On 7 August 2008, the Claimant, through the EFF, requested FIFA’s assistance in order to
obtain the respective International Transfer Certificate (ITC) for the Respondent 1 from
the Football Federation T. On 29 August 2008 and after a careful study of the matter and
several exchanges of correspondence with the EFF, FIFA informed the EFF that it did not
appear to be in a position to intervene with regard to the issuance of the relevant ITC.
4.
On 8 September 2008, the Claimant lodged a complaint in front of FIFA against the
Respondent 1 for breach of contract without just cause within the protected period and
against the club K (hereinafter: the Respondent 2), for inducement to breach of contract.
5.
According to the Claimant, after signing the employment contracts with the Respondent
1, it found out by means of newspaper articles that the Respondent 1 was apparently in
negotiations with the Respondent 2 and that he had made several statements
manifesting that he would try to cancel the agreements signed with the Claimant. In
addition, the Claimant states that on 1 July 2008, the president of the Respondent 2
arrived in G to try to negotiate the dissolution of the Respondent 1’s contracts, which,
according to the Claimant, manifestly constitutes an admittance of the Respondent 2’s
responsibility for the breach of contract committed by the Respondent 1. Furthermore,
the claimant states that the Respondent 1 contacted it offering to return the EUR 168,800
he had received as a sign on bonus, which according to the Claimant, manifestly
constitutes an admittance of his responsibility for the breach of contract.
6.
According to the Claimant, the Respondent 1 never invoked any just cause or sporting
just cause or any reason justifying his unilateral termination of the contracts, which
violated the stability of contracts and harmed the sporting and financial interests of the
Claimant, causing considerable moral damage to its image. Furthermore, the Claimant
states that the Respondent 1 calculated the consequences of the breach of contract,
having taken into account his age, the probable remaining time of his career and the
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amount of time a claim against him will take before the Dispute Resolution Chamber
(DRC) reaches a decision and imposes sporting sanctions on him.
7.
In this respect, the Claimant requests from the player compensation for breach of
contract without just cause or sporting just cause during the protected period in the
amount of EUR 1,568,800:
a. EUR 1,200,000, as financial compensation corresponding to the estimated sporting
and financial damages suffered by the Claimant, taking into consideration the
alleged estimated value of the Respondent 1, the fact that the Claimant was
deprived of the services of an experimented and skillful player and the amount of
money it had to spend in replacing him;
b. EUR 168,800, as reimbursement of the sign on bonus paid to the Respondent 1;
c. EUR 200,000, as moral damages.
8.
The Claimant also asks the DRC that the Respondent 2 be held jointly and severally liable
with the Respondent 1 to pay the requested compensation and to impose sporting
sanctions on the Respondent 1.
9.
On 9 September 2008 and before the Respondent 1 had been informed of the claim
lodged against him, he sent a letter to FIFA stating that he had returned the EUR 168,800
he had received from the Claimant as a sign on bonus.
10. On 9 October 2008, FIFA informed the Respondent 1 and the Respondent 2 of the claim
lodged against them by the Claimant. On the one hand, the Respondent 1 replied that
on 31 July 2008 he sent a conciliation request to the Claimant, to which the Claimant
answered by only asking him to return the EUR 168,800 paid to him as a sign on bonus.
Because of this and the fact that he complied with the Claimant’s request and in good
faith reimbursed the money he received, which the Claimant accepted without any
reservation or objection, the Respondent 1 states that the conciliation process between
him and the Claimant had been successfully completed.
11. The Respondent 1 also adds that the Claimant is now trying to unfairly obtain money by
lodging a claim at FIFA, because it did not suffer any damage or loss since it did not pay
any compensation for his transfer to his former club and also that the Claimant is basing
its compensation on a value obtained from an unofficial internet page.
12. Finally, the Respondent 1 manifests that he signed a “pre-agreement” with the
Respondent 2 on 14 April 2008 and that no sporting sanctions can be imposed since he
did not breach his contract in the middle of the season and because, upon the Claimant’s
request, he reimbursed the money he received. Equally, in his conciliation request to the
Claimant and briefly in his position to FIFA, the Respondent 1 states that even though he
had a “pre-agreement” with the Respondent 2 dated 14 April 2008, he only signed a
contract with the Claimant to avoid attending military service , but after he concluded
the contract with the Claimant, there was a law changed which allowed him to postpone
his military service until the age of 38. In this respect, the Respondent 1 manifests that
because there was then no reason for him to leave he had to comply with the “preagreement” signed with the Respondent 2 and play for the latter.
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13. On the other hand, the Respondent 2 replied that it entered into a “pre-agreement”
with the Respondent 1 on 14 April 2008, according to which, the professional labour
contract to be concluded between the parties would be valid as from 9 June 2008 until 31
May 2010. Furthermore, the Respondent 2 manifests that on 9 June 2008, and according
to the pre-determined rules stipulated in the “pre-agreement”, it concluded a
professional labour contract with the Respondent 1. In this respect, the Respondent 2
stated that it is clear that it concluded a legally binding contract with the Respondent 1
before the Claimant and that therefore it does not have any responsibility towards the
Claimant, which is trying to illicitly enrich itself without any justification.
14. After being informed of the Respondent 1’s and the Respondent 2’s position, the
Claimant adhered to its original claim and added that the Respondent 1 and the
Respondent 2 are arguing that they are not responsible or liable for damages towards
the Claimant because of a previously signed contract on 14 April 2008. The Claimant
states that this is the first time such a contention is raised and also the first time such a
document is invoked by the respondents.
15. Furthermore, the Claimant manifests that there was no report in the media that a “preagreement” was signed and that only negotiations were being carried out by the
Respondent 1 and the Respondent 2, which shows that the “pre-agreement” was
fabricated later to exempt the Respondent 2 from its liabilities. Also, the Claimant
presented a newspaper report that the Respondent 1 had been transferred from the
Respondent 2 for the amount of EUR 600,000, which, according to the Claimant, supports
their argument that the Respondent 1 is skillful and experienced.
16. Finally in their respective final comments, both the Respondent 1 and the Respondent 2
adhered to their previous positions and stated that they are not responsible or liable
towards the Claimant for an alleged breach of contract or for inducement to an alleged
unjustified breach of contract.
*****
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, the Chamber referred to art. 21 par. 2 and 3 of
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the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2008; hereinafter: the Procedural Rules). The present
matter was submitted to FIFA on 8 September 2008, thus after 1 July 2008. Therefore,
the Dispute Resolution Chamber concluded that the revised Procedural Rules (edition
2008) are applicable to the matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the
Procedural Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of
Players. In accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of
the aforementioned Regulations, the Dispute Resolution Chamber shall adjudicate on
employment related disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to decide on
the present litigation involving a club, a player and a club regarding an employmentrelated dispute between the parties.
4.
Subsequently, the Dispute Resolution Chamber analysed which edition of the
Regulations on the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand, to art.
26 par. 1 and 2 of the 2008 edition of the Regulations on the Status and Transfer of
Players and, on the other hand, to the fact that the employment contracts at the basis
of the present dispute had been concluded for the duration of 1 July 2008 until 30 June
2010 and 2 July 2008 until 30 June 2010, respectively, and that the Claimant’s complaint
had been lodged with FIFA on 8 September 2008. In view of the foregoing, the Dispute
Resolution Chamber concluded that the 2008 edition of the FIFA Regulations on the
Status and Transfer of Players (hereinafter: the Regulations) is applicable as to the
substance of the case at hand.
5.
Entering into the substance of the matter, the Dispute Resolution Chamber examined
the documentation presented by the parties throughout the proceedings and took note
that the Claimant and the Respondent 1 had entered into a contractual employment
relationship by means of the conclusion of two employment contracts, one signed on 14
May 2008 and valid from 1 July 2008 until 30 June 2010 and the other signed on 2 July
2008 and valid from that same date until 30 June 2010. In this respect, the Chamber
noted that, in accordance with the terms of the contract signed by and between the
Claimant and the Respondent 1 on 14 May 2008, the Respondent 1 duly received a sign
on bonus in the amount of EUR 168,800 from the Claimant.
6.
Furthermore, the Dispute Resolution Chamber analyzed that the Respondent 1 and the
Respondent 2 also entered into a contractual relationship by signing a “pre-agreement”
on 14 April 2008, according to which, the professional labour contract to be concluded
between the parties would be valid as from 9 June 2008 until 31 May 2010.
7.
In continuation, the members of the Chamber took due note that the Claimant lodged
a claim with FIFA demanding from the Respondent 1 compensation in the amount of
EUR 1,568,800 for breach of contract without just cause or sporting just cause during
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the protected period, alleging that the Respondent 1, in spite of concluding two
employment contracts with the Claimant, never honoured his contractual
responsibilities towards the Claimant and joined the Respondent 2. Furthermore, the
Chamber noted that the Claimant also lodged a claim against the Respondent 2 for
inducement to breach of contract allegedly committed by the Respondent 1.
8.
In this regard, the Chamber analyzed that in his response to the above, the Respondent
1 did not explicitly deny failing to honour the contracts concluded with the Claimant,
but stated in his defence that the conciliation process was “completed between the
parties” due to the fact that he sent a conciliation request to the Claimant, to which the
latter answered by only demanding the return of the amount of EUR 168,800 paid as a
sign on bonus to him. In this respect, the Chamber noted that the Respondent 1
manifests that because he complied with the Claimant’s petition and in good faith
reimbursed the money he received as a sign on bonus, which the Claimant accepted
without any reservation or objection, a conciliation process had been completed
between the parties.
9.
In view of the argumentation put forward by the Respondent 1, the members of the
Chamber deemed that, in order to be able to establish whether a breach of contract
was committed by the Respondent 1, it was crucial to closely examine the
aforementioned documentation, by means of which the Respondent 1 claimed to have
sent to the Claimant a conciliation request, and in its response, the Claimant answered
by only asking the reimbursement of the EUR 168,800 paid to him as a sign on bonus,
hence accepting or agreeing to a conciliation under the terms proposed by the
Respondent 1 in his conciliation request.
10.
In this context, the Chamber first and foremost duly noted that the Claimant never
contested to have received the conciliation request sent by the Respondent 1 and in fact
manifested that it demanded the reimbursement of the EUR 168,800 paid to him as a
sign on bonus.
11.
In this respect and after a careful study of the documentation contained in the file, the
Chamber duly established that by means of the document dated 31 July 2008, which is
entitled “Conciliation Request and Returning Back 168,000 Euro to S FC”, the
Respondent 1 did send a conciliation request to the Claimant by means of which he
expressed his will to conciliate and also his promptness to return the EUR 168,800 the
Claimant had paid to him as a sign on bonus.
12.
Equally, the Chamber established that on 2 September 2008 the Claimant answered the
conciliation request sent by the Respondent 1, by only demanding the reimbursement
of the paid sign on bonus (EUR 168,800), and furthermore, providing its bank account
information and setting a deadline for the prompt return of the said amount.
13.
In continuation, the Chamber established that on 4 September 2008 and complying
with the request of the Claimant, the Respondent 1 duly reimbursed the Claimant the
amount of EUR 168,800, which the latter paid to him as a sign on bonus. Equally, the
DRC declared that the Claimant accepted the reimbursement without any reservation or
objection whatsoever.
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14.
In view of the above, the Chamber went on to deliberate as to whether a breach of
contract was committed by the Respondent 1 or if the Claimant and the Respondent 1
duly completed a conciliation process, liberating the Respondent 1 of any financial or
sporting responsibilities towards the Claimant.
15.
In this regard and on account of the foregoing considerations, the Chamber considered
that by answering the conciliation request made by the Respondent 1 by only providing
its bank account information and asking him to reimburse the relevant amount paid to
him as a sign on bonus within a certain deadline, the Claimant tacitly accepted the
aforementioned request and that a conciliation process was successfully completed
between the Claimant and the Respondent 1, exempting the latter from any
responsibility towards the Claimant.
16.
As a result, the aforementioned considerations led the Dispute Resolution Chamber to
conclude that the Claimant’s claim against the Respondent 1 for compensation for
breach of contract without just cause has to be rejected.
17.
Finally, the Chamber turned its attention to the claim lodged by the Claimant against
the Respondent 2 for inducement to breach of contract allegedly committed by the
Respondent 1. In this respect, the members of the Chamber expressed their view that
any possible inducement to a breach of contract by a club would, at is basis, need a
breach of contract committed by the player in question. Accordingly, the Chamber
recalled that, in the present case, no breach of contract was committed by the
Respondent 1 (cf. consideration point III. 16.). Therefore, based on the legal principle of
accessoriness, no inducement to breach of contract could have been committed by the
Respondent 2. On account of the foregoing, the Chamber decided that the Claimant’s
claim against the Respondent 2 for inducement to breach of contract had to be
rejected.
*****
III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, S FC, is rejected.
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*****
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
__________________________________
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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