Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 August 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Diallo (France), Member
Mohamed Mecherara (Algeria), Member
Gerardo Movilla (Spain), Member
Rinaldo Martorelli (Brazil), Member
on the claim presented by
the Club K,
as Claimant
against
the player, L,
as first Respondent
and
the club, FC S
as second Respondent
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 26 February 2007, the B club FC D and the U club Club “K” concluded a transfer
agreement, co-signed by the player L, in connection with the loan of the player to
the U club. The duration of the loan according to the contract was from the date of
signature until 31 December 2007, and the player’s employment contract with FC D
was suspended during the same period of time. In this context, the player and
Club“K” signed a labour agreement, dated 26 February 2007 and valid as of the
same date until 31 December 2007. The contract provided for a monthly salary of
5,000 along with (unspecified) bonuses depending on the player’s performance.
2.
The loan agreement furthermore provided in its 5th paragraph for the following
option: “the Parties agree that “K” has a right to buyout of transfer rights for the
“Football Player” during period of loan. In this case, “K” transfer to “D” 430,000
(four hundred thirty thousand) US dollars till December 31, 2007”.
3.
On 6 February 2008, the U club Club “K” lodged a claim with FIFA against the
player L, the R club FC “S” and FC D and explained that it had exercised the abovementioned buying option on 21 November 2007 by transferring the amount of USD
430,000 to FC D. According to Club “K”, the B club was also informed accordingly in
writing on 23 November 2007. The U club held that FC D had not objected to the
exercise of the option and, at first, did not transfer the money back to Club “K”.
Only after 12 January 2008, the B club apparently repeatedly attempted to transfer
the money back to the U club, which had however been refused by Club “K”.
4.
The U club furthermore held that, on 26 November 2007, it concluded a second
employment contract with the player, dated 1 January 2008 and valid as from that
date until 31 December 2011. The agreement provided for a monthly salary of
5,000 along with (unspecified) bonuses depending on the player’s performance.
According to Club “K”, although the relevant contract was already signed on 26
November 2007, 1 January 2008 was stipulated as the date of the contract since it
was the date when it came into effect. The contract was registered at the U
Professional Football League on 2 January 2008.
5.
According to Club “K”, on 3 January 2008, the R club FC “S” announced on its
webpage that the player L would be transferred from FC D to the R club. After
having taken note of this announcement, Club “K” informed FC D and FC “S”, by
letters dated 3 January, 5 January and 8 January 2008, of the alleged valid
employment relationship between the player and the U club. Nevertheless, FC D
transferred the player to FC “S” and the player signed an employment contract
with the R club on 3 January 2008.
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6.
In this respect, Club “K” also presented a letter dated 9 January 2008 addressed to
the player, by means of which it had allegedly requested him to fulfil his
obligations towards the U club. Club “K” furthermore explained that it had
received, on 9 January 2008, two letters dated 27 December 2007 by means of
which the player L stated that he was not willing to sign a contract with the U club
and wanted to be released. However, according to Club “K”, these statements were
void since at this point of time he had already concluded a further contract with
the U club (on 26 November 2007). Club “K” deemed that approximately at the
same time, he was participating in contract negotiations with FC “S”.
7.
As Club “K” had allegedly received a number of proposals for the player L from
other clubs, it placed him on its transfer list on 12 January 2008. According to the U
club, the minimal transfer amount was 3,000,000 USD.
8.
The U club concluded that the player had refused to meet his obligations towards
Club “K” and had spread false statements indicating that Club “K” forged his
signature on the contract dated 1 January 2008. Therefore, the U club claims the
player has breached art. 13 and art. 18 para. 5 of the FIFA Regulations on the Status
and Transfer of Players.
9.
As a consequence, by means of its claim, Club “K” requested inter alia:
• that the player be prevented from playing matches in any other club until a
decision in the present matter is taken;
• that the provisional registration of the player be forbidden until a decision in the
present case is taken;
• “to confirm that FC K owns the transfer rights to player L”;
• “to confirm the validity of the International Transfer Certificate held on a
permanent basis by the Football Federation of U and FC K”;
• that the transfer contract concluded between FC D and FC “S” be declared invalid;
• that a fine of CHF 1,000,000 be imposed on FC “S”;
• that FC “S” be banned from registering any new players at international or
national level for two registration periods;
• in addition, on 21 February 2008, Club “K” confirmed that it considered the
player L to still be an employee of the club and that it requested his immediate
return.
10.
The U club also filed claims against the B club FC D, since it had allegedly sold
“transfer rights” of the player L to FC “S” without actually being the “holder of
these rights”.
11.
In reply to Club “K”’s complaint, the player L stated that he had signed a contract
with the U club on 26 February 2007 valid until 31 December 2007, i.e. during the
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period of his loan. Furthermore, he asserted never having signed any other contract
with the U club. With regard to the agreement dated 1 January 2008 Club “K”
claims having concluded with him, the player held that on this date he was
celebrating new year together with his family in B. Consequently, he could not
have been present in U on that day.
12.
FC “S” explained that on 3 January 2008, it had concluded an agreement with FC D
regarding the transfer of the player L. On the same day, it had signed an
employment contract with the player. Subsequently, the international transfer
certificate (ITC) for the player had been issued on 30 January 2008 by the B Football
Federation unconditionally and free of limitations and reservations whatsoever.
Consequently, the R club had always acted in conformity with the FIFA rules and
had at all stages of the transfer of the player L been unaware of any disputes
between FC D and Club “K” with regard to the player. Moreover, the club
emphasised that it had never induced the player to take any actions in violation of
FIFA’s regulations.
13.
In response to the statements of the player L and the R club FC “S”, Club “K” held
that the formalities in connection with the transfer of the player to FC “S” took
place between 3 January 2008 and 30 January 2008. In this respect, the U club
maintained that, after having learned on 3 January 2008 from FC “S”’s web page
that the R club had employed the player, it had contacted FC “S” three times within
the next six days informing the R club of the existing conflict. However, FC “S” had
never reacted thereto. Therefore, the U club held that the assertion of FC “S” that
it had not been aware of the dispute regarding the player was wrong.
14.
Furthermore, Club “K” insisted in the validity of the employment contract it
claimed having concluded with the player for the term of 1 January 2008 until 31
December 2011. The contract had been duly signed by both parties and registered
with the U Professional Football League. In this regard, Club “K” referred to a
forensic report by the Ministry of Justice of U, allegedly proving that the player
himself had signed each page of the agreement.
15.
In his final position, the player reiterated that the only contract he concluded with
Club “K” was the one valid from 26 February 2007 until 31 December 2007. He
claimed that he returned to FC D at the end of this contract and afterwards, on 3
January 2008, signed a five-year contract with FC “S”. In this respect, he had
allegedly been informed by FC D that his transfer to the R club was arranged in
strict compliance with the FIFA regulations. Furthermore, the player once more
emphasised that he had not been in U on 1 January 2008, the date he had allegedly
signed the second employment contract with Club “K”, but in B, which could easily
be verified since there is a “visa regulation” between B and U.
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16.
FC “S”, on its part, held that it had always been in contact with FC D while
negotiating the transfer of the player and had believed that this club was indeed
entitled to transfer the player. FC “S” reiterated that it never had any knowledge
of a dispute regarding the player and emphasised that its federation had received
the ITC of the player without any problems. With regard to the letters Club “K”
maintains having sent during the period between 3 January and 9 January 2008,
the R club held that this was in any event after the player’s transfer to FC “S” had
actually occurred. Furthermore, FC “S” presented the contract dated 3 January 2008
which it had signed with the player, valid from 4 January 2008 until 31 December
2012 and providing for a monthly salary of 310,500.
17.
N.B. According to Club “K”, on 28 December 2007 the B Football Federation
requested the ITC of the player from the Football Federation of U. On 9 January
2008, the Football Federation of U responded that the “transfer rights” of the
player still belonged to Club “K” and that the player was contractually bound to
this club until 2011.
18.
On 29 January 2008, the Football Union of R requested the player’s ITC from the B
Football Federation and received the ITC on 30 January 2008. The same day the
player was registered for FC “S”.
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 6 February 2008. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber,
edition 2005 (hereinafter: Procedural Rules), are applicable to the matter at hand
(cf. art. 18 paras. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 para. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 para. 1 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008) the Dispute Resolution Chamber is competent to deal with
the matter at stake, which involves, on the one hand, a U club and, on the other
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hand, a B player and a R club, and is related to a contractual dispute between the
player and the U club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 paras. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2008), and considering that the present claim was lodged on 6 February
2008 and the relevant employment contract was allegedly signed on 26 November
2007, the current version of the regulations (edition 2008; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
Entering into the substance of the matter, the Dispute Resolution Chamber
commenced its deliberations by proceeding to a thorough analysis of the
circumstances given in the matter at hand. The Chamber firstly acknowledged
that, on 26 February 2007, the B club FC D and the U club Club “K” had concluded
a transfer agreement with regard to the loan of the player to the U club until 31
December 2007. Furthermore, the player and Club“K” signed a labour agreement,
dated 26 February 2007 and valid as of the same date until 31 December 2007.
5.
In continuation, and upon examination of the relevant loan agreement, the
members of the Chamber noted that in its 5th clause it contained an option for Club
“K” for a “buyout of transfer rights” of the player, subject to the transfer of USD
430,000 until 31 December 2007. The members of the Chamber acknowledged that
the U club maintained having exercised this option. In this regard, the members of
the Chamber took note that, on the basis of the documents at its disposal, it
appeared that the U club had taken the necessary measures to take the option by
transferring the amount of USD 430,000 to FC D and informing the B club
accordingly in writing on 23 November 2007. Furthermore, from the documents on
file, the members of the Chamber noted that it appeared that FC D had not
objected to the exercise of the option until 12 January 2008, when it apparently
repeatedly tried to transfer the money back, which had however been refused by
Club “K”.
6.
The Chamber furthermore noted that, in addition to the arrangements made in
order to exercise the relevant option, Club “K” claimed having signed a further
employment contract with the player on 26 November 2007, valid as from 1
January 2008 until 31 December 2011.
7.
In this regard, the members of the Dispute Resolution Chamber noted that,
whereas the U club insisted on the validity and the performance of the
aforementioned alleged contract, the player L claimed the document to be a
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forgery and, on his part, entered into employment relationship with the R club FC
“S” on 3 January 2008.
8.
As a consequence of the above-mentioned circumstances, the members present at
the meeting concurred that, first and foremost, it had to be established whether
there is still a valid employment relationship between the player L and the club
Club “K”.
9.
In this context, the members of the Chamber proceeded to deliberate on the
player’s allegation according to which he had never signed the contract in
question as he had not been present in U on the 1 January 2008, and that
consequently his signature had been forged.
10.
With regard the player’s accusation of forgery, the Dispute Resolution Chamber
attached importance to clarifying that it was not competent to adjudicate on
criminal offences, such as the alleged forgery of a signature.
11.
In this sense, the Chamber added that, as a general principle, it is up to the party
invoking a forgery of a signature to initiate the corresponding proceedings before
the competent penal authorities. Such steps, however, did not appear to have
been taken by the player in the present matter.
12.
In this regard, and with reference to the standing jurisprudence of the Players’
Status Committee and the Dispute Resolution Chamber, the members of the
Chamber recalled that the authenticity of a signature was to be presumed until
evidence to the contrary is presented, unless an evident and manifest difference
between the signatures in question is ascertained.
13.
Turning their attention to the signatures on the document which Club “K” claimed
to be the original contract allegedly signed with the player on 26 November 2007,
and comparing them to the signatures contained in the uncontested contract
between the same parties dated 26 February 2007, each member of the Chamber
assured himself that there was no visible difference between the player’s
signatures contained in the two contracts.
14.
What is more, the Dispute Resolution Chamber also relied on the forensic report
issued by the Ministry of Justice of U, which concludes that the player himself had
signed each page of the contested agreement, and emphasized that the player, on
his part, had neither contested the said report nor presented any evidence
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whatsoever in order to corroborate his allegation that his signature had been
forged.
15.
Furthermore, and reverting to the player’s argument that he had been in B on 1
January 2008 and therefore not been able to sign the contract, the Chamber
deemed it fit to point out that the relevant contract was signed on 26 November
2007 (emphasis added) with 1 January 2008 as the date of its entry into force.
16.
On account of the above, the Chamber deemed that it had no alternative but to
conclude that the player L and the U club Club “K” had indeed entered into a
labour agreement valid as of 1 January 2008 until 31 December 2011.
Consequently, the Dispute Resolution Chamber decided that there was still a valid
and legally binding employment relationship between the U club and the B player
which has to be respected.
17.
With regard to the request for sanctions against FC “S”, the Dispute Resolution
Chamber emphasised that, in general, the inducement to breach of contract as
established in art. 17 para. 4 of the Regulations is always accessory to the breach
of contract committed by a player. As a consequence, such claims cannot be
considered independently, but only in case a breach of contract by a player has,
upon respective request, been established. In this respect, the Chamber noted that,
so far, Club “K”’s request for relief did not include any requests against the player
(emphasis added) based on art. 17 para. 1 of the Regulations, and that the said U
club rather insisted that the player resume duty with it.
Finally, the Dispute Resolution Chamber noted that any claims of Club “K” against
the B club FC D would, in accordance with art. 22 lit. f) of the Regulations on the
Status and Transfer of Players, have to be considered by the Players’ Status
Committee upon a respective investigation.
18.
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III.
Decision of the Dispute Resolution Chamber
1.
It is established that a valid contractual relationship still exists between the
Claimant, Club “K”, and the first Respondent, L, until 31 December 2011.
*****
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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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