Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 20 July 2012,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
Player M, from Country N,
as Claimant
against the club,
Club A, from Country B
as Respondent
and the club,
Club F, from Country N
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 30 January 2011, the player M (hereinafter: the player or the Claimant), and the club
A (hereinafter: Club A), signed an employment contract (hereinafter: the contract) valid
for the season 2010/2011, as of the date of signature “until the last competition of the
Football Federation of Country B”. According to the Football Association of Country B,
the season 2010/2011 started on 20 August 2010 and finished on 15 May 2011.
2.
According to art. 5 of the contract, Club A undertakes to pay the player a salary in the
total amount of USD 40,000, payable in unspecified monthly instalments throughout
the validity of the contract.
3.
According to the information contained in FIFA’s Transfer Matching System
(hereinafter: TMS), on 1 February 2011, Club A requested the player’s International
Transfer Certificate (hereinafter: ITC) and, on 2 February 2011, the Football Association
of Country B, on behalf of its affiliate, filed a request for “validation exception” before
FIFA.
4.
By means of its correspondence dated 8 February 2011, in reply to the aforementioned
request, FIFA informed the Football Association of Country B that “a request for the
special exemption from a ‘validation exception’ like the one at stake in the transfer
matching system (TMS) can only possibly be granted provided the club concerned duly
accomplished all the necessary steps in view of registering the player within the
relevant registration period in the TMS” […]; since “no contract was uploaded in the
relevant transfer instruction, we regret having to inform you that we do not appear to
be in a position to grant your request for the special exemption from the ‘validation
exception’ in the TMS”.
5.
On 28 March 2011, the player lodged a claim in front of FIFA for breach of contract
without just cause and after amending his claim, he requests that Club A and Club F
Sport Club (hereinafter: Club F) should be held jointly and/or severally liable to proceed
with the payment of the total amount of USD 140,000, plus unspecified interests, made
up of USD 100,000 as compensation for the fact that the player became unemployed
and USD 40,000 as the total amount of salaries due for the entire duration of the
contract with Club A.
6.
According to the player, Club A failed to upload the transfer agreement dated 30
January 2011 signed with Club F in TMS within the stipulated deadline, as established in
Annex 3 art. 3 par. 3.1.1 of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations). Therefore, Club A’s request for a validation exception
was denied by FIFA on 8 February 2011 and the player could not enter the new
employment relationship with Club A. Since the player was no longer registered with
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Club F, he found himself unemployed and, thus, also ineligible to play for the national
team of Country N.
7.
In its response, Club A argues having transferred the amount of USD 60,000 to Club F on
1 February 2011 for the transfer of the player and to have entered all necessary data
into TMS within the established deadline. Allegedly, Club F is responsible for the noncompliance with the Regulations, as it only entered the relevant data into TMS on 1
February 2011 at 8:15pm, i.e. after the expiry of the deadline on 31 January 2011 at
midnight. After Club A on 1 February 2011 at 8:47pm requested the player’s ITC and on
2 February 2011 the special exemption from a validation exception, it received the
correspondence of FIFA (cf. point I.4). Therefore, Club A denies being responsible for
any kind of losses endured by the player and, thus, rejects the player’s claim for
compensation.
8.
Club F, in its turn, claims having complied with its obligations regarding the submission
of documents for the registration of the player. By means of a letter dated 31 January
2011, Club F informed Club A that all relevant data regarding the request for the
player’s ITC would be inserted into TMS after Club A had paid the amount of USD
60,000 to Club F. The transfer of the aforementioned amount was allegedly concluded
by Club A on 1 February 2011; on the same day, Club F entered the relevant data in
TMS. According to Club F, the correspondence of FIFA dated 8 February 2011 refers to
an obligation with which Club A did not comply. Therefore, the latter shall be held
responsible for the non-conclusion of the transfer.
9.
In his final position, the player rejects Club A’s arguments, pointing out that neither
could Club A prove that Club F acted untimely, nor did it explain the reasons for the
delay in uploading the contract on TMS.
10.
The player deems both clubs to be responsible for the interruption of the transfer
procedure and states that a financial agreement between them should not affect their
obligations regarding the transfer procedure or jeopardize the player’s employment.
11.
In spite of having been invited to do so, Club A and Club F did not submit their final
positions regarding the player’s claim.
12.
Finally, the player informed FIFA that he signed a new employment contract with Club
F, on 30 May 2011, valid as from the date of signature until the end of season
2012/2013. According to the new contract, the player is entitled to a monthly salary of
Currency of Country N (NNN) 1,250.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the DRC analysed whether it was competent to deal with the case at hand. In
this respect, the Chamber took note that the present matter was submitted to FIFA on
28 March 2011. 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 par. 3 of the
Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. a) and b)
of the Regulations (edition 2010), it is competent to decide on the present litigation,
which concerns the maintenance of contractual stability where there has been an ITC
request as well as an employment-related dispute with an international dimension,
between a player from Country N, a club from Country B and a club from Country N.
3.
Furthermore, the DRC analysed which edition of the Regulations should be applicable as
to the substance of the matter. In this respect, the Chamber confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations (edition 2010) and considering
that the present matter was submitted to FIFA on 28 March 2011, the 2010 edition of
said Regulations is applicable to the present matter as to the substance.
4.
The competence of the DRC and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In doing so, it started to
acknowledge the facts of the case as well as the documents contained in the file.
5.
In this respect, the DRC acknowledged that it was undisputed by the parties that Club A
and the Claimant had signed an employment contract, on 30 January 2011, valid for the
season 2010/2011, i.e. as from 30 January 2011 until 15 May 2011, in accordance with
which the Claimant was entitled to receive remuneration in the total amount of USD
40,000 for the entire duration of the contract.
6.
Furthermore, the DRC noted that it was also undisputed by the parties that the
aforementioned contract never came into force, due to the non-fulfilment in a timely
manner of the pre-requisites set forth by TMS for the international transfer of a player.
7.
Entering into the arguments set forth by the parties, the Chamber took note of the
contents of the Claimant’s claim, according to which, due to Club A’s and Club F’s noncompliance with the TMS rules regarding the data entered into TMS for the transfer
procedure of the player, the new contract with Club A could not enter into force. Since
the previous contract with Club F had already expired, the player found himself
unemployed and ineligible to play for the national team of Country N. In view of the
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aforementioned, the Claimant requests that both Club A and Club F should be held
responsible for the non-conclusion of the contract and, thus, jointly and severally liable
to pay him compensation in the total amount of USD 140,000.
8.
In continuation, the Chamber noted that, on the one hand, Club A claims not to be held
responsible for the fact that the contract between it and the player could not come into
effect. Club A states having paid the transfer fee of USD 60,000 to Club F on 1 February
2011. According to Club A, while the deadline stipulated by FIFA had expired on 31
January 2011 at midnight, Club F only entered the relevant data into TMS on 1 February
2011. On 2 February 2011, Club A, through the Football Association of Country B,
requested the exemption from a validation exception, which was consequently denied
by FIFA on 8 February 2011, by means of its aforementioned letter (cf. point I.4).
9.
On the other hand, the Chamber took note of the fact that Club F deems to have
complied with its obligations regarding the submission of documents into TMS for the
player’s registration with Club A. According to Club F, by means of its letter dated 31
January 2011, it informed Club A that all relevant data would be entered into TMS as
soon as the transfer fee of USD 60,000 would be paid. According to Club F, the
aforementioned amount was paid on 1 February 2011 by Club A and, on the same date,
Club F entered the relevant data in TMS. Thus, Club A should be held responsible for
any untimely submission of documents into TMS and for the non-conclusion of the
transfer of the player.
10.
Having established the aforementioned, the Chamber deemed that the underlying issue
in this dispute, considering the claim of the Claimant and the allegations of both Club A
and Club F, was to determine whether the non-conclusion of the transfer of the player
would be attributed to one of the parties and, if so, which would be the financial
and/or sporting consequences for the party held responsible for the aforementioned
breach.
11.
At this point, the DRC deemed it appropriate to remind the parties of art. 8.1 par. 2 of
Annexe 3 of the Regulations, which stipulates that, at the very latest, the ITC request
must be submitted via TMS on the last day of the registration period of the new
association.
12.
In continuation, the Chamber pointed out that in accordance with art. 4 par. 5 of
Annexe 3 of the Regulations, the procedure in relation to the ITC request can only be
initiated once the club(s) have complied with their obligations in line with the
preceding paragraphs of this article.
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13.
In this regard, the DRC referred to art. 4 par. 2 of Annexe 3 of the Regulations,
according to which clubs are obliged to enter transfer instructions by uploading at least
the mandatory documents (cf. art. 8.2 par. 1 of annexe 3 of the Regulations).
14.
Having said that, the Chamber particularly stressed that art. 8.2 par.1 of Annexe 3 of
the Regulations states that all data allowing a new association to request an ITC shall be
entered into TMS, verified and matched by the club wishing to register a player during
one of the registration periods established by that association. Furthermore, the
Chamber underlined that according to the same provision, the new club shall, when
entering the relevant data, upload at least the mandatory documents depending on the
selected instruction type.
15.
Bearing in mind the foregoing provisions, the DRC deemed it appropriated to shortly
recall the sequel of events related to the player’s transfer procedure on TMS, according
to the documents on file. In this context, the Chamber acknowledged that, on 30
January 2011, the Claimant and Club A signed an employment contract, valid as from
the date of signature until 15 May 2011. On 1 February 2011, Club A requested the
player’s ITC. On 2 February 2011, the Football Association of Country B, on behalf of
their affiliate, filed a request for “validation exception” before FIFA, which was rejected
by the latter, by means of its letter dated 8 February 2011, according to which “a
request for the special exemption from a ‘validation exception’ like the one at stake in
the transfer matching system (TMS) can only possibly be granted provided the club
concerned duly accomplished all the necessary steps in view of registering the player
within the relevant registration period in the TMS” […]; since “no contract was
uploaded in the relevant transfer instruction, we regret having to inform you that we
do not appear to be in a position to grant your request for the special exemption from
the ‘validation exception’ in the TMS”.
16.
Taking into consideration the instruction type at stake as well as the pre-established
deadline of 31 January 2011, until midnight, to upload all relevant documentation and
information into TMS in order to conclude the player’s transfer, the Chamber reinforced
the content of FIFA’s correspondence of 8 February 2011 and clarified that in casu a
copy of the employment contract between the player and his new club as well as a copy
of the transfer agreement concluded between the player’s former club and his new club
are both mandatory documents which must be duly uploaded by the new club on time,
i.e. during the pertinent registration period.
17.
In addition, the DRC was eager to emphasize that it is the responsibility of the engaging
club, i.e. Club A, to ensure that the player is properly registered with his new club in
order to be able to provide it with his services. Since the engaging club is the one
supposedly interested in acquiring the rights of the player and in benefiting from his
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services, it is also expected from it that it acts accordingly in view of obtaining the
player’s ITC and his subsequent registration.
18.
Subsequently, the DRC pointed out that, in the present case, however, the relevant
contract regarding the transfer of the player from Club F to Club A was not uploaded
into TMS before the expiry of the deadline on 31 January 2011, at midnight, and
therefore the employment contract signed on 30 January 2011 between the Claimant
and Club A could not come into force.
19.
Bearing in mind the aforementioned considerations, the DRC unanimously concluded
that the employment contract dated 30 January 2011 signed between Club A and the
player was to be considered as valid and binding and that the transfer at the basis of
such contract could not be effected due to the failure of Club A, the engaging club, to
comply with the international transfer procedure established in Annexe 3 of the
Regulations.
20.
Having established that Club A is to be held liable for the non-execution of the
employment contract at the basis of the present dispute, without just cause, the DRC
began to establish the consequences of such breach. Taking into consideration the nonobservance of the legal principle of pacta sunt servanda by Club A and its consequences
for the player’s career, the Chamber decided that the Claimant is entitled to receive
from the Club A an amount of money as compensation for the non-conclusion of the
player’s transfer to the club.
21.
In continuation, the DRC focused its attention on the calculation of the amount of
compensation for the unjustified non-execution of a valid and binding contract by Club
A.
22.
In doing so, the DRC took into account, inter alia, the remuneration due to the Claimant
in accordance with the employment contract, the time remaining of the said contract as
well as the professional situation of the Claimant, after the impossibility to execute the
contract was ascertained.
23.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract due for its
entire validity. In this regard, the DRC observed that, according to art. 5 of the contract,
Club A undertook to pay the player global remuneration in the amount of USD 40,000,
payable in monthly instalments throughout the validity of the contract.
24.
Furthermore, the DRC took into account that the player had not signed any
employment contract with another club between 30 January 2011 and 15 May 2011, i.e.
during the entire validity of the contract with Club A.
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25.
In view of the foregoing, the Chamber was of the opinion that, in case a valid and
binding contract does not come into force due to a failure which can be attributed to
the club, the player shall be entitled to receive compensation from the relevant club in
the amount of one forth to one third of the total value of the contract.
26.
In this respect, the DRC concluded that the amount USD 15,000 of compensation, to be
paid to the Claimant by Club A, was to be considered reasonable and justified.
27.
For all the above reasons, the DRC decided to entirely reject the Claimant’s claim
against the club of Country N, Club F, and to partially accept the claim of the Claimant
against Club A. In this context, the Chamber holds Club A liable to pay the player the
total amount of USD 15,000 as compensation for the breach of contract.
28.
The Chamber concluded its deliberations by rejecting any further claims lodged by the
Claimant.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player M, against the Respondent, Club F, is rejected.
2.
The claim of the Claimant, Player M, against the Respondent, Club A, is partially
accepted.
3.
The Respondent, Club A, has to pay to the Claimant, Player M, the amount of USD
15,000, within 30 days as from the date of notification of this decision.
4.
If the aforementioned sum is not paid within the above-mentioned time limit, an
interest rate of 5% p.a. will apply on the said amount as of expiry of the time limit until
the date of effective payment and the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for its consideration and a formal decision.
5.
Any further claims lodged by the Claimant, Player M, are rejected.
6.
The Claimant, Player M, is directed to inform the Respondent, Club A, 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.
*****
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Note relating to the motivated decision (legal remedy):
According to art. 67 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
Jérôme Valcke
Secretary General
Enclosed: CAS directives
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