Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 September 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Diallo (France), member
Zola Majavu (South Africa), member
Philippe Piat (France), member
Carlos Soto (Chile), member
on the claim presented by the club
A, AA,
represented by Y,
as Claimant,
against the player
X, AA,
and the club
B, BB,
as Respondents,
regarding a dispute about the breach of an employment contract
and the inducement to breach an employment contract.
I.
Facts of the case
1.
On 19 October 2005, the AA player X, born on 4 August 1980 and the AA club, A,
concluded an employment contract valid from 3 January 2006 until 3 January
2007. The parties agreed on a monthly salary in the amount of AA xxxxx
(XXX) 30,000,000 (= approx. EUR 11,000).
2.
On 18 January 2006, the player was loaned to the cc club C where he signed an
employment contract with validity until 31 December 2006.
3.
On 5 January 2007, the player and the bb club, B, signed an employment contract
with validity until 30 June 2008. The parties agreed on a monthly salary in the
amount of EUR 30,000 for the first BB division and in case of relegation to the
second BB division loan amount of EUR 17,000. The BB club was relegated at the
end of the season 2006/2007.
Proceedings in front of the Single Judge of the Players’ Status Committee
concerning the issuance of the International Transfer Certificate
4.
On 16 January 2007, the BB FA (BBB) requested the Federación AA de Fútbol
(AAA) to issue the International Transfer Certificate (ITC) for the player X in favour
of its affiliated club, B.
5.
On 19 January 2007, the AAA answered that it would not be possible to issue the
ITC for the player in question as he had signed on 16 January 2006 an extension of
the employment contract with A for one year until 3 January 2008. A provided
FIFA with a copy of this extension of the employment contract signed by both, the
player and the club, and entitled “Otrosí al contrato de trabajo a termino fijo de
tres (03) años suscrito entre A y X” (free translation: Annex to the three-year
employment contract signed between A and X).
6.
On 25 January 2007, the BB club claimed that it appears clear that the player had
never signed any employment contract and/or any extension of such a contract
valid until 3 January 2008 and that the extension document presented by the AA
club is not genuine.
7.
On 30 January 2007, FIFA received the original of the extension of the
employment contract dated 16 January 2006. The document is signed by both, the
player and A.
A, AA / Player X, AA/ B,BB
2
8.
On 1 February 2007, the Single Judge of the Players’ Status Committee
acknowledged that the main reason put forward by A for its refusal to consent to
the granting of international clearance for the player X is to preserve its transfer
rights and the possibility to be compensated for the transfer of the player. In this
respect, the Single Judge stressed that A had underlined the important economical
rights it detains based on the existing contractual relationship with the player X.
Equally, the Single Judge pointed out that the AA club even declared that it is at
the BB club’s disposal in order to negotiate the transfer with it. Finally, the Single
Judge was eager to emphasise that in its extensive petition to FIFA, A never
requested the return of the player to AA.
9.
On account of the above, the Single Judge concluded that from the position put
forward by A in reply to the BBB’s and FIFA’s requests for the issuance of the
relevant ITC, it appears that the AA club does not really seem to be interested in
counting on the services of the player in question anymore, but is rather seeking
for financial compensation.
10.
Under the given circumstances, the Single Judge decided to authorise the BBB to
provisionally register the player X for its affiliated club B, pending the outcome of
the contractual labour dispute between the AA and the player, with the
intervention of the BB club, as to the substance of the matter, which would have
to be dealt with by the Dispute Resolution Chamber. The Single Judge clarified
that his decision was without prejudice to the decision that the Dispute Resolution
Chamber might pass at a later stage.
Claim of A
11.
On 23 February 2007, A stressed that the player himself proposed on 16 January
2006 to extend the contract for one year. In the relevant document, the player
had declared on 16 January 2006 in writing that the employment contract with A
would be suspended during the loan period with C and renewed after the end of
the loan period for one year (hereafter: “declaration of suspension”, copy on file).
The declaration of suspension had been countersigned by the club with the
annotation “acceptado”. Furthermore, the AA club referred to a second
document, the extension of the employment contract, signed by both, the player
and the club, also dated 16 January 2006 and entitled “Otrosí al contrato de
trabajo a termino fijo de tres (03) años suscrito entre la A y X” (free translation:
Annex to the three-year employment contract signed between A and X; hereafter:
“extension contract”). Apart from the declaration of suspension signed on the
A, AA / Player X, AA/ B,BB
3
same day, by means of this document, the player agreed on an extension of the
employment contract for one year until 3 January 2008. The original of this
extension contract was remitted to FIFA.
12.
The AA club explained that the loan to the CC club, C, was executed against the
payment of an amount of USD 170,000 and if the CC club wished to obtain the
services of the player definitely, C would have had to pay an additional amount of
USD 1,500,000. The AA club emphasised that it had been the will of the player to
suspend the employment contract with A for one year and to extend the validity
of the same contract until 3 January 2008. The AA club always searched options to
transfer the player to European clubs for an amount of USD 1,500,000. According
to A, in the second semester of the year 2006, the player and his agent intended
to leave the club and to not comply with the extension contract signed on 16
January 2006. During this period, the CC club, C, manifested its interests in the
services of the player and to pay the amount agreed upon for the definitive
transfer option. On 30 November 2006, the player informed the AA club that he
did not intend to extend the contractual relationship. Finally, in its letter dated 1
December 2006, the AA club insisted on the extension of the employment
contract. Between the 2 and 15 December 2006, the representatives of A advised
the player to resume training with the AA club during the first week of January
2007.
13.
The AA club stressed that only in January 2007 the BB club had indicated that the
extension contract dated 16 January 2006 would be a forgery. However, A
referred to the original of the contract. The AA club emphasised that according to
this document the contractual relationship between the parties had been
undoubtedly established until 3 January 2008. The extension had been mutually
agreed upon between the parties and had not been subject to an unilateral
extension by the club.
14.
The AA club pointed out that neither the player nor the BB club had contacted it
to request an early termination of the contract by mutual agreement.
Furthermore, the AA club stressed that the player had been represented by an
agent without any licence in disrespect of the FIFA Players’ Agents Regulations.
15.
A emphasised that based on these facts, the player had no reason to declare the
early termination of the contract and had therefore no just cause to breach the
contract. In this respect, the AA club referred to the Commentary on the
Regulations for the Status and Transfer of Players (point 3.4 to art. 6 of the
A, AA / Player X, AA/ B,BB
4
Regulations) according to which, obviously, if the Single Judge comes to the
conclusion that the former club has not violated the terms of the contract and
thus the player did not have just cause to terminate the employment relationship,
he will refuse the provisional registration of the player for the new club and will
have to wait for the decision on the substance of the contractual dispute before
eventually deciding again on the registration of the player. Therefore, the AA club
concluded that the decision of the Single Judge would be at least strange. A
underlined that the arguments of the Single Judge that it does not really seem to
be interested in counting on the services of the player in question anymore, but is
rather seeking for financial compensation, were not sufficient to authorise the
BBB to register the player on a provisional basis. In this respect, the club referred
again to the Commentary on the Regulations for the Status and Transfer of
Players (point 8 to art. 2 of Annex 3 of the Regulations) according to which the
former club may ask for the immediate return of the player or for compensation
for damages and the imposition of sporting sanctions.
16.
On account of the above, A claimed that the player breached the contract without
just cause, used the services of a non-licensed players’ agent and lied concerning
the alleged forgery of the documents provided by the AA club. Furthermore, A
alleged that the B induced the player to breach the contract without just cause,
did not inform the AA club in writing before entering into negotiations with the
player and lied concerning the alleged forgery of the documents. Finally, A
claimed that the Single Judge authorised the BBB to register the player on a
provisional basis contrary to the applicable rules.
17.
Therefore, the AA club asked to cancel the decision of the Single Judge dated 1
February 2007, to apply art. 17 of the Regulations for the Status and Transfer of
Players and to condemn the player for breach of contract without just cause and
the BB club for having induced the player to do so.
18.
On account of the above, A claims an amount of USD 1,500,000 from the player
and B.
Answer of the player X and the club B
19.
The player and the BB club answered on 20 March 2007 that the player was no
longer contractually bound to the AA club since 3 January 2007. For this reason,
the claim against the player would be completely unfounded and as a direct
consequence of the absence of contract at the moment when B signed an
A, AA / Player X, AA/ B,BB
5
employment contract with the player, i.e. 5 January 2007, the claim against the BB
club must also be rejected in full.
20.
The player and the BB club confirmed that the player signed with A an
employment contract valid for one year from 3 January 2006 to 3 January 2007
and had subsequently been loaned for one year to C. On 16 January 2006, the
player signed a letter asserting that after the loan period with the CC club, he
intended to renew his contract with A (declaration of suspension). In September
2006, the President and the technical director of A travelled to CC and met the
player in order to propose him to sign a one-year employment contract that
would be valid for one season after the loan of the player to C, i.e. from 3 January
2007 until 2 January 2008. The contract offer submitted to the player dated 18
September 2006 was on the AA club’s letterhead and was already signed by the
club. Moreover it contained the paraph of the club on each page. However, the
player rejected the proposal of contract and never signed this document.
21.
On 30 November 2006, more than 30 days prior to the expiry of his employment
contract with A, the player notified a letter to the AA club stating that he
renounced to the extension of his contract for one further year, in accordance
with the second paragraph of clause 2 of his employment contract of 19 October
2005. The player and the BB club emphasised that therefore, the player validly
notified his refusal to renew the contract and its automatic renewal did not occur.
A copy of this letter was remitted to FIFA.
22.
Consequently, the employment contract between the player and A ended in
accordance with its original agreed contractual term on 3 January 2007. As the
player was a free player as from 4 January 2007, the BB club and the player signed
an employment contract on 5 January 2007.
23.
The player and the BB club pointed out that the contract between A and the
player had not been extended as the proposal for the renewed contract dated 18
September 2006 had not been signed by the player. Furthermore, the player and
the BB club stressed that the letter dated 16 January 2006 (declaration of
suspension) is not a new employment contract and/or an extension of it, but solely
a unilateral and informative declaration of the player. Only the genuine
employment contract duly signed by the parties is relevant and binding.
24.
Furthermore, the player and the BB club declared once again that the extension of
the employment contract dated 16 January 2006 (extension contract) presented by
A, AA / Player X, AA/ B,BB
6
A is a forgery. The player denied having signed that document. According to the
player and the BB club, a long range of evidences shows that this document is not
and cannot be genuine:
-
the extension of the employment contract refers to a three-year employment
-
contract. However, the parties never signed a three-year contract;
the document is not signed and/or paraphed on each page, contrary to the
constant practice between the parties on other contractual documents.
Moreover, the annex is printed on a white page, without the letterhead of
the club;
-
on the second page, right above the last paragraph and the signatures of the
parties, the presence of an unexplained and unnecessary blank space can be
noted;
-
the disputed document was allegedly signed on 16 January 2006, i.e. on the
same day as the declaration of suspension signed by the player. Due to the
contents of both documents, it makes no sense that they were signed on the
-
-
same date;
on 18 September 2006, A proposed and provided the player with an offer for
a new employment contract valid from 3 January 2007 until 2 January 2008.
Therefore, the BB club asks why A sent such a contractual offer if the alleged
document had been signed already;
in its letter dated 1 December 2006 in response to the non-extension letter
of the player X, the AA club makes reference to the declaration of
suspension of 16 January 2006 only. However, the club made no single
mention of any annex or extension of the employment contract allegedly
signed on the same day.
25.
The player and the BB club stated that they are ready to submit the document to a
graphological expertise in order to prove that the player has not signed it.
26.
On account of the above, the player and the BB club concluded that the player
never signed the relevant document and that therefore, it must be established
that the claim against B basically lacks of substance. Given that the contract of the
player with the AA club expired on 3 January 2007 and given that the
employment contract of the player with the BB club was signed on 5 January 2007,
it is impossible that the BB club has induced any breach of contract, for the simple
reason that the player was out of contract.
A, AA / Player X, AA/ B,BB
7
27.
Therefore, the claim of A would not only be unfounded but also reprehensible, as
it clearly appears that the AA club had no sporting interests in the player, but
exclusively financial ones. The player and the BB club emphasised that the
Claimant itself stressed that it had approached a certain number of European
clubs at the end of 2006 in view of a possible transfer of the player. However, the
contact of clubs was illegitimate, as the player would no longer have been
contractually bound to the club for the period as from 4 January 2007.
28.
The player and the BB club pointed out that the claim of A for the alleged use of
the services of a non-licensed agent must be rejected on the ground that this
person was the adviser and counsel of the player, not his agent.
29.
On account of the above, the player and the BB club ask that the Dispute
Resolution Chamber rejects the claim of the Claimant in full, that it establishes
that the employment contract between the player and A expired on 3 January
2007, that it establishes that the player was a free player as from 4 January 2007,
that it establishes that the BB club has not induced any breach of contract and
that it submits the case to the FIFA Disciplinary Committee for forgery and/or
falsification of a document in accordance with art. 58 of the FIFA Disciplinary Code
so as to start investigations against A.
Replication of A
30.
The AA club argued on 4 April 2007 that FIFA has no competence to declare that a
document is a forgery. However, the Claimant emphasised that it always acted in
good faith as it forwarded the original of the extension of the employment
contract dated 16 January 2006 (extension contract). Furthermore, it underlined
that it is impossible to prove the authenticity of a document. According to the
principle onus probandi incumbit actori (burden of proof) it would be up to the
player and the BB club to prove the forgery of the document. However, the
Claimant requested as well that the document should be submitted to a
graphological expertise. Furhtermore, A pointed out that it had always acted
according to art. 5 par. 2, 3 and 5 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (DRC). On the
other hand, the player and the BB club would not have acted with the same
professionalism and did not forward any proof that the relevant document was a
forgery. In this respect, the Claimant referred to the contents of art. 12 par. 3 and
6 of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (DRC). Therefore, the AA club reiterated that the
A, AA / Player X, AA/ B,BB
8
player and the BB club would have to prove the alleged forgery. Finally, the
Claimant stressed that the contractual relationship between the parties would
exist and is still valid. On account of this fact, the Claimant cannot be blamed if it
tries to obtain an economical benefit. This would not be a valid argument as all
clubs would act like that.
Rejoinder of the player X and the club B
31.
On 16 May 2007, the player and the BB club referred to their answer dated 20
March 2007 and emphasised once again that the sole intention of the Claimant is
to make financial benefits out of the player and that it was never effectively
interested in his sporting qualities. Such attitude would not be in the spirit of the
FIFA Statutes and regulations. Therefore, and considering the arguments in the
answer to the claim, the player and the BB club maintained again that the claim of
A must be rejected in its entirety.
Further requests
32.
On 22 March, 22 May and 9 July 2007, the Claimant requested an oral hearing to
be held in front of the Dispute Resolution Chamber.
II.
Considerations of the Dispute Resolution Chamber
As to the competence of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 23 February
2007, as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) on matters pending before the decision making bodies
of FIFA are applicable on the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 par. 1 in connection with art. 22 (a) of the aforementioned
A, AA / Player X, AA/ B,BB
9
Regulations, the Dispute Resolution Chamber shall adjudicate disputes between
clubs and players in relation to the maintenance of contractual stability if there
has been an ITC request and if there is a claim from an interested party in relation
to such ITC request, in particular regarding compensation for breach of contract.
3.
As a consequence, the Dispute Resolution Chamber stressed that it is the
competent body to decide on the present litigation involving a AA club, a AA
player and a BB club regarding a contractual dispute in relation to an ITC request.
4.
Subsequently, the members of the Chamber analysed which edition of the
Regulations for 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 Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at the
basis of the dispute was signed on 19 October 2005, respectively the other
documents at the basis of the litigation were allegedly signed in January 2006,
and the claim was lodged at FIFA on 23 February 2007. In view of the
aforementioned, the Chamber concluded that the current FIFA Regulations for the
Status and Transfer of Players (edition 2005, hereafter: the Regulations) are
applicable on the case at hand as to the substance.
As to the request of A for an oral hearing to be held in front of the
Dispute Resolution Chamber
5.
The Dispute Resolution Chamber firstly acknowledged that A requested an oral
hearing to be held in front of the Chamber. In this respect, the Chamber referred
to art. 8 of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (DRC), according to which as a general rule,
proceedings shall be conducted in writing.
6.
To that regard, the Chamber stated that both parties had made use of their right
to defend their position in writing twice and had submitted extensive statements
and documentation. Furthermore, the members of the Chamber deemed that the
present case does not contain any particular factual difficulty which might justify
the necessity that the parties attend an oral hearing in order to present their case
directly in front of the Chamber. In this respect, the Chamber was unanimously of
the opinion that the presence of the parties in front of the Chamber would not
provide it with any new relevant factual information. Therefore, the Chamber
considered to be sufficiently well informed by means of the written submissions in
A, AA / Player X, AA/ B,BB
10
order to properly assess the matter and pass a formal decision and rejected the
respective request of A.
As to the substance
7.
Entering into the substance of the matter, the members of the Chamber started by
acknowledging the entire documentation contained in the file, and in view of the
circumstances of the case, focused on the questions whether an unjustified breach
of the employment contract concluded between the player and A occurred and
which party is responsible for such possible breach of contract as well as whether
inducement to breach of contract occurred. Depending on the conclusions on
these questions, the Chamber would also have to verify and decide if sanctions for
breach of contract and inducement to breach of contract have to be applied.
Responsibility for the possible breach of contract
8.
The Chamber took note that it is uncontested that the player was under contract
until at least 3 January 2007 with A and went on loan to the CC club, C, as from 18
January 2006 until 31 December 2006.
9.
As far as the question of the responsibility for the potential breach of contract is
concerned, the Chamber first of all acknowledged that the player’s salaries until
the beginning of the loan with the CC club in January 2006 were duly paid.
10.
The Chamber then started extensive deliberations as to whether the employment
relationship between the player and A had been renewed or extended beyond
3 January 2007. In this respect, the Chamber first and foremost took note that the
player had signed a declaration (declaration of suspension) according to which the
employment contract with A would be suspended during the loan period for one
year and that the contract would be extended under the same conditions for one
more year until 3 January 2008. The player never contested having signed this
declaration of suspension. Furthermore, the Chamber took note that the club had
accepted the declaration of suspension by including the annotation “acceptado”
and countersigning it. The Chamber particularly referred to the fact that the
declaration of suspension mentioned the new date of the ordinary expiration of
the contract, i.e. 3 January 2008.
A, AA / Player X, AA/ B,BB
11
11.
In this respect, the Chamber was eager to emphasise that it could not follow the
argumentation of the player and the BB club that the declaration of suspension
cannot be considered an extension of contract but solely a unilateral and
informative declaration. In fact, as mentioned before, it bears the signature of
both parties and clearly indicates the new date of expiry of the contractual
relationship. Even if it should originally have been a unilateral proposal from the
player, the club had explicitly accepted it in writing by means of the relevant
annotation.
12.
In continuation, the Chamber carefully studied the original of the document
which was allegedly as well signed on 16 January 2006 and entitled “Otrosí al
contrato de trabajo a termino fijo de tres (03) años suscrito entre la A y X”.
13.
In view of the fact that the Respondents contest the authenticity of the relevant
document, the Chamber deemed it appropriate to recall that it has not
competence to judge over issues of penal relevance. As a consequence, a party
claiming forgery of documents needs to be referred to the competent penal
authorities.
14.
Bearing in mind the above, and in particular also the fact that the AA club had,
upon request, immediately produced the original copy of the document, which
was now on file, the members of the Chamber unanimously deemed that they had
no genuine reason to doubt on the authenticity of the relevant document.
Effectively, the quite singular signature of the player appears to be identical to
other signatures of the player on other documents on file, the expiry date of the
extended contract is the same like mentioned in the declaration of suspension
(3 January 2008), both documents mention that the contract is extended under
the same conditions and both documents bear the same typeface. Since the blank
space to which the Respondents are referring to is not between the last paragraph
and the signatures but before the last paragraph and the signatures, also this
aspect does not suffice to give raise to doubts about the genuineness of the
document.
15.
Therefore, the Chamber concluded that without prejudice to penal procedures, in
the light of its jurisdiction and role, it could not back the Respondent’s position.
Furthermore, the Chamber emphasised that the declaration of suspension alone
would already be a sufficient document to prove the extension of the contractual
relationship until 3 January 2008. Finally, the Chamber was of the opinion that the
fact that the club proposed and provided the player on 18 September 2006 with
A, AA / Player X, AA/ B,BB
12
an offer for a new employment contract with other conditions, which was not
accepted by the player, does not annul contents of the documents signed on
16 January 2006. If this offer had been countersigned by the player, it would
simply have replaced the signed and already existing documents concerning the
extension of the contract.
16.
In view of the above, the Chamber concluded that the player had been bound by
a valid contract to A until 3 January 2008. Furthermore, he not presented any
evidence to corroborate either, that his departure had been authorised by the
club or that he had just cause to prematurely leave his club.
17.
On account of the above, the Chamber concluded that the early departure of the
player without the authorisation of the club or just cause and his signing of a new
contract with B is to be considered as a breach of the employment contract by the
player without just cause.
A, AA / Player X, AA/ B,BB
13
Consequences of the unjustified breach of contract for the player
18.
On account of the above-mentioned conclusion, the Chamber had to address the
issue of the consequences of a unjustified breach of contract, in accordance with
art. 17 of the Regulations.
19.
In this context, the Chamber first of all acknowledged that the employment
contract in question was signed on 19 October 2005 and had entered into force on
3 January 2006. Moreover, the Chamber stated that the date to be considered as
the date of the breach of the relevant employment contract by the player is 5
January 2007, the day when the player signed the employment contract with the
BB club, B.
20.
In view of this, the Chamber declared that the player had breached the
employment contract without just cause undoubtedly during the protected period
as provided for in the point 7 of definitions of the Regulations and art. 17 par. 1
and 3 of the Regulations. Therefore, according to the aforementioned provisions,
financial and sporting sanctions shall be imposed on the player.
21.
In this respect, the Chamber first focussed its analysis on the amount of
compensation for the unjustified breach of contract due by the player to A and
examined the not exhaustive list of objective criteria 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, 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 a protected period.
22.
In this respect, and before proceeding to assess the amount of compensation the
player would have to pay, the Chamber deemed it important to emphasise that
the AA club had completely omitted to anyhow specify its claim form
compensation, but simply asked for the payment of USD 1,500,000. As a result, the
Chamber explained that it would also have to consider aspects of equity. Equally,
it recalled that the Regulations leave the Chamber a certain scope of discretion to
decide on an amount ex aequo et bono.
23.
In continuation, the first criteria the Chamber took into consideration was the
remuneration under the employment contract between the player and A, and the
length of time remaining on the said contract. In this regard, the Chamber took
into consideration that the player would have been entitled to receive from
A, AA / Player X, AA/ B,BB
14
January 2007 until December 2007 on account of salaries the total amount of XXX
360,000,000 (= approx. EUR 132,000; XXX 30,000,000 or approx. EUR 11,000 per
month).
24.
The second criteria the deciding authority took into consideration was the salary
agreed upon under the new contract with B for the time remaining on the
existing contract. In this respect, the Chamber took note that the player and the
BB club had agreed on a monthly salary in the amount of EUR 30,000 for the 1.
BB-division and in case of relegation to the 2. BB-division on an amount of EUR
17,000. Furthermore, the Chamber noted that B had been relegated at the end of
the season 2006/2007. Therefore, the Chamber took into consideration that under
the new contract the player was entitled to receive from January 2007 until
December 2007 on account of salaries the total amount of EUR 282,000 (6 monthly
salaries in the amount of EUR 30,000 = EUR 180,000 + 6 monthly salaries in the
amount of EUR 17,000 = EUR 102,000).
25.
Equally, the Chamber emphasised that the alleged offer of USD 1,500,000 for the
services of the player by another club can in any case not be taken into
consideration as the AA club failed to provide FIFA with any evidence about
transfer offers from other clubs. In this respect, the deciding body referred to the
legal principle of the burden of proof, which is a basic legal principle in every legal
system, according to which a party deriving a right from an asserted fact has the
obligation to prove the relevant fact (cf. also art. 12 par. 3 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber). Therefore, the questions whether the contractual offers received by the
former club should, as a general rule, be considered, can remain open.
26.
The Chamber finally analysed the stances of the player and A, in order to consider
if there were any exceptional aggravating of mitigating circumstances that would
have an influence on the amount of compensation. Thereto, the Chamber stated
that the attitude of the player could be judged as particularly reproachable. In
fact, the player left the club without any permission and without any just cause
one year prior to the ordinary expiration of the contract. The damage caused by
the player is not only of a financial nature, but also a sporting one, since A could
not rely on the services of the player during the period of absence. On the other
hand, the deciding authority also considered in favour of the player that the AA
club did actually never make use of the services of the player, since during the first
contractual year he had been almost constantly on loan in CC.
A, AA / Player X, AA/ B,BB
15
27.
In view of all of the above, the members of the Chamber came unanimously to the
conclusion that the player is liable to pay compensation for breach of contract to
A in the amount of EUR 300,000. This amount appears to be appropriate and
reasonable.
28.
Furthermore, the Chamber decided that in accordance with art. 17 par. 2 of the
Regulations, the new club of the player, i.e. B, is jointly and severally responsible
for the payment of the amount of compensation the player has to pay to the AA
club.
29.
The Chamber then turned to the question of the sporting sanctions to be imposed
on the player in accordance with art. 17 par. 3 of the Regulations.
30.
In this respect, the Chamber referred to the basic sanction of four months on the
player’s eligibility to participate in any official football matches in case of an
unjustified breach of contract by a player during the protected period.
31.
Therefore and since no aggravating circumstances of relevance appears to exist,
the Chamber decided that the player had to be sanctioned with a restriction of
four months on his eligibility to participate in any official football matches as from
the notification of this decision.
Consequences for B for possible inducement to unjustified breach of contract
32.
In continuation, the Chamber had to consider whether sporting sanctions for
inducement to contractual breach had to be imposed on the new club of the
player, B, in accordance with the art. 17 par. 4 of the Regulations.
33.
Considering the substance of the matter, in order to establish the alleged
responsibility of B for inducement to contractual breach, the Chamber
preliminarily deemed it appropriate to recall some of the key events surrounding
the contractual breach between the player and A. In particular, it was emphasised
that the player had left his club without any valid reason and without permission
of the club and had signed a new employment contract on 5 January 2007.
34.
The Chamber then focussed its analysis on the accountability of B for inducement
to the contractual breach committed by the player.
35.
In particular, the Chamber first referred to art. 17 par. 4 of the Regulations,
according to which, a club seeking to register a player who has unilaterally
A, AA / Player X, AA/ B,BB
16
breached a contract without just cause during the protected period will be
presumed to have induced a breach of contract.
36.
As a consequence, it is the burden of B to demonstrate that it should not be held
responsible for having induced the player to breach the contract.
37.
In this respect, the Chamber examined the credible position of B and thereby
noted in particular that the BB club, when it signed the employment contract with
the player on 5 January 2007, based itself on the player’s statements and on the
fact that the player produced the employment contract dated 19 October 2005,
according to which the contract with A was to expire on 3 January 2007. As a
result, the BB club was of the conviction that the player was free to sign a new
employment contract.
38.
In this regard, the Chamber referred to the due diligence requested of a club to
verify that it does not take a player under contract who has still a valid contract
with another club. The deciding authority deemed that in cases where a player
and/or his players’ agent assure that there is no contractual link to another club
existing even corroborating this by means of apparently documentary evidence,
provided no indications to the contrary appear, the new club has, as a general
rule, in good faith to be protected in trusting on the information received. Yet, it
was also explained that it is always recommendable for a new club to check with
the Association of the former club what the contractual situation of the player
actually is before signing him.
39.
As a consequence of the above and taking into consideration all the particularities
of the case at stake, the Chamber concluded that the BB club had no reason to
doubt that the player was free to sing an employment contract with it, all the
more as the player did present some contractual documents as evidence and no
contradictory indications appeared to be existing.
40.
Therefore, the Chamber deemed that in view of these circumstances, it has to be
concluded that the player was not induced by B to terminate his contract with A.
41.
In light of all the above circumstances, the Chamber concluded that B is not
responsible for inducement to breach of contract and decided that no sporting
sanctions are imposed on the BB club.
Further requests
A, AA / Player X, AA/ B,BB
17
42.
The request of A to cancel the decision of the Single Judge dated 1 February 2007
was rejected. The Chamber emphasised that it is not in its competence to cancel a
decision of the Players’ Status Committee or its Single Judge.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the club A is partially accepted.
2.
The player X is ordered to pay EUR 300,000 to the club A within the next 30
days as from the date of notification of this decision.
3.
The club B is jointly and severally responsible for the payment of the abovementioned amount to A.
4.
If the aforementioned amount is not paid within the stated deadline, an interest
rate of 5% per year shall apply, as from expiry of the stated deadline.
5.
In the event that the player X or the club B do not comply with the present
decision, the matter shall be submitted to FIFA’s Disciplinary Committee, so that
the necessary disciplinary sanctions may be imposed.
6.
Any further claim lodged by A is rejected.
7.
The club A is instructed to inform the player X and B 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.
8.
A restriction of four months on his eligibility to play in official matches is imposed
on the player X. This sanction shall take effect as from notification of the present
decision.
9.
According to art. 61 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
A, AA / Player X, AA/ B,BB
18
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:
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 General Secretary
Encl.
CAS directives
A, AA / Player X, AA/ B,BB
19