Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 17 August 2012,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Zola Percival Majavu (South Africa), member
Theodoros Giannikos (Greece), member
on the claim presented by the club,
Club I from country K
represented by Mr Nikola Badovinac, Attorney at Law
as Claimant
against the player,
Player T from country M
represented by Mr Mr Jørn Bonnesen, Attorney at Law
and the club,
Club O from country D
represented by Mr Mr Jørn Bonnesen, Attorney at Law
as Respondents
regarding an employment-related dispute
arisen between the parties
Club H from country R
I.
Facts of the case
1.
On 26 August 2008, player T from country M (hereinafter: the player), and club I from
country K, (hereinafter: the Claimant), signed an employment contract (hereinafter: the
contract) valid as from 1 July 2008 until 30 June 2009.
2.
According to art. 4 of the contract, the Claimant undertakes to pay the player the
following amounts:
- EUR 7,000 net as sign-on bonus, payable on 5 December 2008;
- EUR 3,000 net as monthly salary;
- accommodation, transportation, training and alimentation expenses;
- two plane tickets from country M to country K and back per year.
3.
As specified in art. 3 of the employment contract, “Si aucune offre n’est faite au club
supérieure ou égale à 500,000 euros, le contra test automatiquement renouvelable pour
une seule et autre saison avec les conditions suivantes: 15,000 euros comme prime de
signature; 4,000 euros comme salaire mensuel”. Translated into English, such clause
establishes that in case no offer equal to or higher than EUR 500,000 is made to the club
for the player, the contract shall be automatically renewed for only one more season
and the player shall then be entitled to a sign-on bonus of EUR 15,000 and to a monthly
salary of EUR 4,000.
4.
As per the aforementioned clause, by the end of the season 2008/2009, the contract was
automatically renewed for the season 2009/2010.
5.
On 23 July 2010, as per the request of Football Association from country D, the Single
Judge of the Players’ Status Committee decided for the registration of the player with
Club O from country D (hereinafter: Club O), based on the argument that “he had no
other alternative but to doubt the current existence of a valid contractual relationship
between the player and Club I from country K. […] Taking into consideration that the
club I from country K did not explicitly request the return of the player, the Single
Judge pointed out that club I from country K does not appear to be genuinely
interested in the services of the player anymore, but rather in financial compensation
for his transfer”.
6.
On 18 November 2010, the Claimant lodged a claim in front of FIFA against the player
and club O from country D (hereinafter: the Respondents), alleging that the player,
induced by the club O from country D, terminated the contract without just cause. Thus,
the Claimant claims from the Respondents the payment of the total amount of EUR
1,006,000, plus interests of 5% p.a. as of 18 November 2010, made up of:
- EUR 600,000 in damages for the breach of contract without just cause;
Club I from country K / Player T from country M, and Club O from country D
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- EUR 100,000 corresponding to lost profits from the unconcluded transfer to club H
from Country R;
- EUR 106,000 corresponding to all amounts paid by the Claimant to the player
during the contract;
- EUR 200,000 of lost profits regarding an unconcluded sponsorship agreement;
- legal fees.
7.
The Claimant further requests that club O from country D should be banned from
registering new players for the next two transfer windows, as from the day of the
decision.
8.
In its arguments, the Claimant states that at the beginning of June 2010, it received an
official initial offer from the club H from country R for the transfer of the captioned
player in the amount of EUR 600,000, valid until 25 July 2010.
9.
The player, however, did not resume his activities with the Claimant on 15 June 2010,
after his vacations; hence, the Executive Committee of the Claimant took the decision of
suspending him from the team for an undetermined period of time.
10.
Later on, the Claimant found out that the player had, on 29 June 2010, signed a new
employment contract with club O from country D, valid for three years, breaching the
terms of his contract with the Claimant as well as art. 18 par. 3 of the Regulations on
the Status and Transfer of Players (hereinafter: the Regulations).
11.
The Claimant deems that, due to the player’s breach of contract, it had poor results
during season 2010/2011, was downgraded from the 11th to the 15th position of 16 in
the First League from country K and lost its sponsor.
12.
In their response, the player and club from country D state that they only signed a new
employment contract on 29 June 2010, i.e. upon expiry of the player’s contract with the
Claimant, and that the new contract was valid as from 1 July 2010. According to the
Respondents, the legality of his new contract was confirmed by the decision of the
Single Judge of the Players’ Status Committee.
13.
The player states never having been informed of an alleged proposal from Club H from
country R for his transfer. Even if there had actually been an offer from said club, it is
not sure that it indeed would have been concluded. Thus, the player refuses any
relation between his transfer to club O from country D and the financial and sport
hazard endured by the Claimant, for which the club has presented no evidence.
14.
Furthermore, according to art. 3 of the contract, in case the Claimant actually received
an offer in the amount of EUR 600,000 from club H from country R for the player, the
possibility of an automatic extension of the contract with the player would be
Club I from country K / Player T from country M, and Club O from country D
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precluded and therefore, by the time he signed the contract with club O from country D
he was not anymore contractually bound to the Claimant.
15.
As a result and according to art. 18 par. 3 of the Regulations, the player was allowed to
enter into negotiations with a possible new club already six months before the expiry of
the contract with the Claimant. Thus, no compensation is due by the player or club O
from country D to the Claimant.
16.
In its replica, the Claimant rejects the argumentation of the Respondents, especially
regarding the alleged impossibility of an automatic contract renewal. It insists on the
application of art. 3 of the contract, since it is compatible with art. 18 par. 2 of the
Regulations, in the sense that it limits the duration of the contract.
17.
The fact that the Claimant received an offer from club H from country R in the amount
of EUR 600,000 does not imply the automatic termination of the contract, but entitles
the Claimant to enter into negotiations with club H from country R regarding the
player’s transfer. The fact that the player was not aware of said offer is, according to
the Claimant, irrelevant to the case, since he would eventually be informed of it before
the conclusion of the transfer, once he came back from his holidays. The player,
however, never returned from his holidays. In addition, the fact that the player was not
aware of the offer indicates that he was not in a position to enter into negotiations
with club O from country D.
18.
In their final position, the Respondents maintain their previous argumentation and
point out that art. 3 of the contract provides for only one automatic renewal of the
latter, otherwise it would violate the terms of art. 18 par. 2 of the Regulations, by not
observing the prohibition therein contained to sign indefinite contracts. According to
the Respondents, the contract had already been automatically renewed on 30 June
2009, for season 2009/2010; thus, no further renewals would be allowed.
19.
In addition, the Respondents reject the Claimant’s argumentation, according to which
the player would not be allowed to enter into negotiations with another club without
informing his current club in writing, in line with art. 18 par. 3 of the Regulations.
20.
The Respondents further point out that the Claimant lost its sponsor because of its poor
performance and relegation from the First League from country K, which cannot be
attributed to the player’s transfer to club O from country D.
21.
Finally, the Respondents dispute the calculation of the amount of damages requested
by the Claimant, since it is based solely on speculations for a possible transfer of the
player to club H from country R and the club’s losses regarding its poor performance.
Club I from country K / Player T from country M, and Club O from country D
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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
18 November 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 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 in conjunction with art. 22 lit. b) of the
Regulations (edition 2010), it is competent to decide on the present litigation, which
concerns an employment-related dispute with an international dimension, between a
player T from country M, a club O from country D and a club I from country K.
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 18 November 2010, 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 the
Claimant and the player had signed an employment contract, on 26 August 2008, valid
for the seasons 2008/2009, i.e. as from 1 July 2008 until 30 June 2009, in accordance
with which the player was entitled to receive EUR 7,000 net as sign-on bonus, EUR 3,000
net as monthly salary accommodation, transportation, training and alimentation
expenses, as well as two plane tickets from country C to country M and back per year.
6.
Furthermore, the DRC noted that it was also undisputed by the parties that, as a
consequence of art. 3 of the contract (cf. point I.3.) the latter was, on 30 June 2009,
automatically renewed for the season 2009/2010, and its validity was extended until 30
June 2010.
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 the player, induced by club O from
country D, breached the contract signed with the Claimant, by not returning from his
holidays and entering a new employment relationship with the said club O from
country D on 1 July 2010, in spite of the fact that he was still contractually bound to the
Claimant.
Club I from country K / Player T from country M, and Club O from country D
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8.
In this respect, the DRC took note of the fact that the Claimant claims, on the one hand,
that the contract signed with the player on 26 August 2008 was still in force when the
player left to the club O from country D, as a consequence of the application of its art.
3, which stipulates that in case no offer equal to or higher than EUR 500,000 is made to
the Claimant for the player, the contract shall be automatically renewed for one more
season. Since by the end of season 2009/2010 no such offer was made, the Claimant
considers that the contract between it and the player has been automatically renewed
for a further season, i.e. 2010/2011.
9.
On the other hand, the Chamber noted that the Claimant equally states having received
at the beginning of June 2010 an offer from the club H from country R, for the transfer
of the player, in the amount of EUR 600,000. Such offer, however, had to be declined by
the Claimant, as it found out that the player had already signed a new contract with
club O from country D.
10.
Therefore, the Claimant claims from the player and from O from country D the payment
of compensation in the total amount of EUR 1,006,000, plus interests of 5% p.a. as of 18
November 2010, made up of EUR 600,000 in damages for the breach of contract
without just cause, EUR 100,000 corresponding to lost profits from the unconcluded
transfer to club H from country R, EUR 106,000 corresponding to all amounts paid by
the club to the player during the contract, EUR 200,000 of lost profits regarding an
unconcluded sponsorship agreement, as well as legal fees. Furthermore, the Claimant
requires that sporting sanctions should be applied to club O from country D.
11.
Subsequently, the members of the DRC took note of the argumentation of the
Respondents, according to which a contract between them was signed on 29 June 2010
and entered into force on 1 July 2010. By then, the player was no longer contractually
bound to the Claimant, since art. 3 of the contract is clear in stipulating that the
contract can be renewed for one more season only, and such an automatic renewal had
already been concluded by the end of season 2008/2009 for the season 2009/2010.
Therefore, as from 1 July 2010 the player was free to enter a new contractual
relationship with a club of his choice, which was according to the Respondents also
confirmed by the decision of the Single Judge of the Players’ Status Committee.
12.
Furthermore, the Chamber noted that the player states not having been aware of the
existence of an offer from Club H from country R in the amount of EUR 600,000 for his
transfer. The player further states that, even in case such an offer has been actually
made, it is not certain that it would have been concluded. Therefore, the player denies
the obligation to pay the Claimant any type of compensation for lost profit.
13.
In view of the foregoing, the Chamber noted that the Respondents understand that, as
per art. 18 par. 3 of the Regulations, they were entitled to enter into negotiations
Club I from country K / Player T from country M, and Club O from country D
6/11
already six months before the expiry of the contract with the Claimant. Thus, the player
and club O from country D deem, respectively, not to have breached the contract with
the Claimant and not to have induced such breach. Therefore, the Claimant would not
be entitled to any type of compensation from the Respondents.
14.
The Chamber further took note of the content of the Claimant’s replica and in this
regard it observed that the Claimant has a different interpretation of art. 3 of the
contract, according to which a second automatic extension of the contract would still be
possible and in line with art. 18 par. 2 of the Regulations. In addition, according to the
Claimant, the offer of club H from country R does not imply the automatic termination
of the contract, but allows the Claimant to initiate negotiations for a possible transfer
of the player. However, since the player never returned from his holidays, such
negotiations could not be concluded and, thus, the contract with the Claimant would
still be valid, in line with art. 3 of the contract.
15.
Finally, the DRC took note of the final arguments of the Respondents, by means of
which they insisted on the possibility of only one extension of the contract, for one
more season, which had already occurred on 30 June 2009. The Respondents deem that
the Claimant’s interpretation of art. 3 of the contract is contrary to art. 18. par. 2 of the
Regulations, since it would allow the indefinite extension of the contract; therefore,
such interpretation cannot be accepted. The alleged damages and the relegation
endured by the Claimant, according to the Respondents, cannot be considered as arising
from the signature of the player’s new contract with club O from country D and
therefore, cannot be attributed to them.
16.
Having established the aforementioned, the DRC deemed that the underlying issue in
this dispute, considering the claim of Claimant and the allegations of the Respondents,
was to determine whether the employment contract signed between the Claimant and
the player was still in force when the latter signed the new contract with club O from
country D, and if so, if the player’s contract with the Claimant had been actually
breached by the player, and if such breach had been induced by club O from country
D. The Chamber also underlined that, subsequently, if it were found that the
employment contract between the Claimant and the player was still valid and binding
for the parties and had, in addition, been actually breached by the player, induced or
not by club O from country D, it would be necessary to determine the financial and/or
sporting consequences for the party(ies) that caused the unjust breach of the relevant
employment contract.
17.
In view of the above, the DRC subsequently noted that the controversy at the basis of
the aforementioned dispute lies fundamentally on the interpretation of art. 3 of the
contract signed between the player and the Claimant on 26 August 2008.
Club I from country K / Player T from country M, and Club O from country D
7/11
18.
In this respect, the Chamber deemed it appropriate to recall the wording of art. 3 of the
aforementioned contract, which stipulates that, in case no offer equal to or higher than
EUR 500,000 is made to the club for the player, the contract shall be automatically
renewed for only one more season and the player shall then be entitled to a sign-on
bonus of EUR 15,000 as a monthly salary of EUR 4,000.
19.
In this regard, and before analysing the contents of the aforementioned provision of
the contract, the Chamber deemed it important to remind the parties of the content of
art. 18 par. 2 of the Regulations, according to which “The minimum length of a contract
shall be from its effective date until the end of the season, while the maximum length
of a contract shall be five years. Contracts of any other length shall only be permitted if
consistent with the national laws. Players under the age of 18 may not sign a
professional contract for a term loner than three years. Any clause referring to a longer
period shall not be recognized”.
20.
The DRC then started to analyze the content of art. 3 of the contract and the
circumstances of its application in the case at hand. In this sense, the Chamber
understands that the wording of art. 3 of the contract at hand, both in its original
version in French as well as in its translation into English, mentions the possibility of one
automatic renewal, for one season only, i.e. “[…] pour une seule et autre saison […]”, in
case no offer equal to or higher than EUR 500,000 is made for the transfer of the player.
21.
In continuation, the DRC also observed that it was undisputed by the parties that on 30
June 2009, since no such offer was made to the Claimant, the contract of 26 August
2008 was automatically extended for one more season, namely season 2009/2010,
according to art. 3 of the contract.
22.
Bearing in mind the wording of art. 18 par. 2 of the Regulations and of art. 3 of the
contract, as well as the specific circumstances of the present case, the members of the
Chamber were of the opinion that art. 3 of the contract contains a clear stipulation
regarding the possibility of automatically extending the duration of the contract only
once, and for only one more season.
23.
Furthermore, the Chamber deemed it appropriate to point out that, even if the article’s
wording were not that clear and would thus allow a different interpretation of its
content, the one to finally prevail would necessarily have to be in line with art. 18 par. 2
of the Regulations, which explicitly establishes a maximum length of a contract and,
consequently, prohibits the existence of contracts with an indefinite duration.
24.
In view of the aforementioned elements, the DRC pointed out that, in the present case,
the existence of an offer for the player in the amount of EUR 600,000 by club H from
country R shall be considered as irrelevant, since art. 3 clearly stipulates that the option
of a contract extension is executable only once and, in view of its previous application
Club I from country K / Player T from country M, and Club O from country D
8/11
by the end of season 2008/2009, its possible legal effects are to be considered as having
been completely exhausted.
25.
Bearing in mind the foregoing, the members of the DRC concluded that, in view of the
exhaustion of the legal effects of art. 3 of the contract and in line with the provision of
art. 18 par. 2 of the Regulations, the renewal of the player’s contract with the Claimant
for season 2010/2011 could not be considered.
26.
In view of all the above, the Chamber decided to reject the Claimant’s argument that
the contract would have been renewed automatically for the season 2010/2011, since its
interpretation would lead to the conclusion of the existence of a contract with an
indefinite duration, which would not be in line with art. 18 par. 2 of the Regulations.
27.
In continuation and for the sake of good order, the Chamber recalled the basic principle
of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to
which a party claiming a right from an alleged fact shall carry the respective burden of
proof.
28.
In this regard, the members of the DRC took note of the fact that the Claimant claims
that the player failed to resume his activities with the club on 15 June 2010, once his
holidays were finished. Subsequently the Chamber noted that the Claimant was not
able to provide any type of evidence regarding the issuance of warnings from the
Claimant to the player requesting his return to the club.
29.
In view of the above and bearing in mind the principle of burden of proof, the
members of the Chamber stated that the Claimant was not able to present any evidence
that the player had been warned about his alleged unauthorized absence, nor that he
had been requested to resume his activities with it. Since no documents providing that
the club warned or reminded the player about the alleged situation have been brought
to the attention of the DRC by the Claimant, the Chamber concluded that the Claimant
was not able to prove its legitimate interest in the continuation of the employment
relationship with and in the services of the player. Therefore, the DRC deemed it
appropriate to reinforce the content of the decision of the Single Judge of the Players’
Status Committee, of 23 July 2010, in this regard.
30.
In view of all the above considerations, the Chamber concluded that, on 1 July 2010, the
player was no longer contractually bound to the Claimant and, as such, was free to
enter an employment relationship with any club of his choice, as previously identified
by the Single Judge of the Players’ Status Committee in his decision. As a consequence,
the Chamber deemed that neither the player breached his contract with the Claimant,
nor has club O from country D induced any type of breach. In view of all the
aforementioned, the Chamber decided to entirely reject the claim of the Claimant
against the player and club O from country D.
Club I from country K / Player T from country M, and Club O from country D
9/11
31.
Consequently, the claim of the Claimant for the imposition of sporting sanctions on club
O from country D was also rejected by the Chamber.
32.
Finally, and for the sake of good order, the DRC held that the Claimant’s claim
pertaining to legal costs is rejected, in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s longstanding jurisprudence.
*****
III.
Decision of the Dispute Resolution Chamber
Club I from country K / Player T from country M, and Club O from country D
10/11
The claim of the Claimant, Club I from Country K , is rejected.
*****
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
Club I from country K / Player T from country M, and Club O from country D
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