Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 September 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
Philippe Diallo (France), member
on the claim presented by the club
C,
as Claimant
against the player
P,
as Respondent 1
the club
B,
as Respondent 2
the club
A,
as Respondent 3
the club
D,
as Respondent 4
the club
F,
as Respondent 5
and the club
T,
as Respondent 6
regarding a contractual dispute
between the parties
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I.
Facts of the case
A) Preamble
1.
On 5 October 2003, the club, C (hereinafter: the Claimant), and the player, P
(hereinafter: the Respondent 1), signed an employment contract (hereinafter: the
contract) valid for four years until October 2007.
2.
According to art. 2 of the contract, the Respondent 1 was entitled to receive a
monthly salary of USD 10,000 for the first 10 months and a monthly salary of USD
5,000 for the remaining period of the contract.
3.
In March 2004, the Respondent 1 was transferred on a loan basis from the
Claimant to the club, B (hereinafter: the Respondent 2) for a period of nine
months as from 30 March 2004 until 31 December 2004.
4.
In this context, on 18 March 2004, the Respondents 1 and 2 concluded an
employment contract, which was apparently signed by the Respondent 2 only,
valid until 31 December 2004 (art. 5 of the said employment contract), according
to which the player was entitled to receive a monthly salary of USD 7,000 plus
bonuses.
5.
However, the Respondents 1 and 2 mutually agreed on the early termination of
the relevant employment contract and in August 2004, the Respondent 1 was
transferred to the club, D (hereinafter: the Respondent 3). The pertinent
International Transfer Certificate of the Respondent 1 was issued on 30 August
2004 by the E Football Federation (EFF). An employment contract was signed by
and between the Respondents 1 and 3 on 23 August 2004 and provided for a
period of validity until 23 December 2004 (art. 1 of the said employment contract).
6.
On 18 January 2005, the club, D (hereinafter: the Respondent 4), and the
Respondent 1 signed an employment contract valid as of the date of signature
until the end of the Respondent 4’s participation in the 2005 national
Championship X. According to the said contract, the player was entitled to receive
a salary of 400,000 as well as two bonifications of 300,000 each, related to
transport and alimentation. Furthermore, the Respondents 1 and 4 concluded an
image rights agreement of a monthly value of 14,000,000.
7.
Around September 2005, the Respondent 1 concluded an employment contract
with the club, F (hereinafter: the Respondent 5).
B) Procedure before FIFA
8.
On 12 September 2005, the Claimant contacted FIFA and lodged a formal
complaint against the Respondents 1, 2 and 4.
9.
In this respect, the Claimant informed FIFA that the Respondent 1 had not come
back at the expiry of the loan period on 31 December 2004 and that the latter had
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been transferred to the Respondent 4 without the Claimant having approved and
known about the said transfer.
10.
With regard to the loan agreement concluded with the Respondent 2, the
Claimant presented to FIFA a letter dated 30 March 2004, i.e at the beginning of
the loan period (cf. no I. A. 3 of the present decision), addressed by the U Football
Association (UFA) to the EFF, by means of which it informed the EFF that it had
issued the relevant International Transfer Certificate (ITC) and that it requested
the return of the ITC at the end of the loan period on 31 December 2004. The
Claimant also furnished two correspondence it had addressed, on 27 and 30 March
2004, to its Association authorising the issuance of the ITC and referring to the
return of the player at the expiry of the loan period. In addition, the Claimant
furnished a correspondence from the Respondent 1 dated 24 March 2004, by
means of which the latter committed himself, inter alia, to return to the Claimant
at the expiry of the loan period.
11.
Furthermore, the Claimant explained that, when it became aware of the
Respondent 1’s transfer to the Respondent 4, it had contacted the UFA and
received the confirmation that the Respondent 1 was in O. Indeed, on 24 July
2005, the UFA requested from the EFF the issuance of the Respondent 1’s ITC in its
favour and in reply thereto, the EFF declared, on 3 August 2005, that the relevant
ITC had been issued in favour of the O Football Federation (OFF) on 30 August
2004.
12.
On account of the foregoing, the Claimant requested the imposition of sporting
sanctions on the Respondent 1, the payment of an amount of USD 200,000 as
compensation from the Respondent 2, based on the fact that the latter had
supposedly breached the loan agreement, as well as the payment of an amount of
USD 200,000 as compensation from the Respondent 4, “which signed the player
without advising club C”.
13.
On 24 January 2006, the Respondent 4 rejected the Claimant’s claim.
14.
In this respect, the Respondent 4 affirmed that it had never had any contact with
the Claimant or held any negotiations with the latter. According to the
Respondent 4, the Respondent 3 authorised, on 11 February 2005, the national
transfer of the Respondent 1. To corroborate its declarations, the Respondent 4
submitted to FIFA two declarations from the Respondent 3, dated 4 and 11
February 2005, by means of which the latter stated that the Respondent 1 was
free of any debts towards it. Finally, the Respondent 4 maintained that the
Respondent 1 had left the club, on 30 July 2005, without having fulfilled his
contractual obligations.
15.
On 1 February 2006, the Respondent 2 rejected the Claimant’s claim. Indeed, it
considered itself not responsible for any breach committed by the Respondent 1
towards the Claimant.
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16.
In its statement, the Respondent 2 confirmed that it had effectively signed an
employment contract with the Respondent 1 on 18 March 2004. However, the
relevant parties allegedly mutually agreed to prematurely terminate their
contractual relationship around the months of May/June 2004 due to the alleged
Respondent 1’s poor performance. Since then, the Respondent 2 asserted not
having been informed of the Respondent 1’s whereabouts and, consequently,
could not bear the responsibility of the fact that the latter had allegedly not
returned to the Claimant at the expiry of the loan period in December 2004.
17.
On 10 August 2006, upon request of FIFA, the Respondent 2 provided the latter
with a copy of a correspondence dated 30 August 2004, addressed to its
Federation, by means of which it had authorised the issuance of the ITC in favour
of the OFF, so that the Respondent 1 could be registered for the Respondent 3.
18.
On 9 August 2006, the Respondent 1 rejected the Claimant’s claim.
19.
In this respect, the Respondent 1 firstly affirmed that he had been deceived by the
Claimant and his representative, Mr X, since he alleged that the parties to the
contract had orally agreed upon an increase of the monthly salary in an amount of
USD 5,000. However, the contract provided, in fact, for a decrease of the monthly
salary from USD 10,000 to USD 5,000 after the first ten months of the contractual
relationship. Furthermore, he affirmed that the contract was drafted in English
and A, two languages he allegedly does not understand and that the presence of
an interpreter had been apparently denied. Finally, the Respondent 1 outlined
that, before the signature of the contract, he had understood that the Claimant
was a first division team, which was seemingly not the case.
20.
The Respondent 1 continued explaining that, after a recovery from an injury
occurred in February 2004, he played less than 10% of the official matches for the
Claimant.
21.
Moreover, the Respondent 1 maintained that the Claimant had, on several
occasions, not allowed him to join his association team for friendly matches by
retaining his passport. It was in April 2004 only that the Claimant permitted him to
play for his association team in the qualifying match for the FIFA World Cup
2006™ against B. In this context, the Respondent 1 also declared, without,
however, submitting any documentation related thereto, that the Claimant had
not paid him the salary due for the month of April 2004.
22.
In continuation, the Respondent 1 acknowledged having been transferred on a
loan basis to the Respondent 2, where he allegedly remained until the month of
August 2004, and, subsequently, to the Respondent 3 with the alleged Claimant’s
oral consent given via a telephone conversation.
23.
Equally, the Respondent 1 explained that, at the expiry of the agreed loan period
between the Claimant and the Respondent 2, on 31 December 2004, the Claimant
had neither provided him with any flight tickets or reintegration order nor paid
him his salaries from April until December 2004.
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24.
In this context, the Respondent 1 explained that he had requested from the
Claimant the payment of the alleged outstanding salaries as well as the
authorisation to be transferred to the Respondent 4, which was interested in his
services. According to the Respondent 1, the Claimant, once again, authorised
orally, via a telephone conversation, his transfer to the Respondent 4.
25.
Furthermore, the Respondent 1 was eager to emphasize that his representative,
Mr Y, had allegedly sent to the Claimant several communications between the
months of July and September 2005 to inform it of the Respondent 1’s current
activities as well as of the offers received in view of a potential transfer. In this
respect, and to corroborate his allegations, the Respondent 1 submitted to FIFA
three correspondence dated 6, 7 July and 22 August 2005, without, however,
submitting the relevant fax transmission reports, related to his transfer from the
Respondent 4 to the Respondent 5. By means of the two first correspondence, Mr
Y, inter alia, asked the Claimant to request the Respondent 1’s return, so that he
could further move to R without suffering any sanction; by means of the
correspondence dated 22 August 2005, he apparently informed the Claimant that
the Respondent 1 had been transferred to the Respondent 5.
26.
Summarising the above, the Respondent 1 maintained that he had not received
any salary from the Claimant for a period of time of 30 months, that the latter had
not showed any interest in his services and that the Claimant had always been
aware of his whereabouts. For all these reasons, the Respondent 1 was of the
opinion that he had terminated the contract with just cause and, therefore,
rejected the claim.
27.
In its replica dated 20 September 2006, the Claimant, on the one hand, adhered to
its previous position and, on the other hand, extended the claim towards the
Respondents 2, 5 and the V club, T (hereinafter: the Respondent 6).
28.
In this respect, the Claimant firstly underlined the fact that the Respondent 1 had
accepted to sign the contract after having received all the pertinent information
from his representative, Mr X.
29.
Furthermore, the Claimant stated that it had paid to the Respondent 1 a signing
fee of USD 200,000 in accordance with a non-dated written agreement signed by
the Claimant and the Respondent 1. In this respect, the Claimant also presented a
payment receipt mentioning the said amount and signed by the Respondent 1.
30.
In continuation, and with regard to the other financial aspects of the contract, the
Claimant held that the Respondent 1’s salary had been regularly paid, without,
however, submitting any documentary evidence in this respect. In addition, the
Claimant insisted that it had considerably invested in order to acquire the
Respondent 1’s services. Indeed, the latter was supposedly entitled to receive the
aforementioned signing fee of USD 200,000 as well as a salary allegedly higher
than the one received by the other members of the team. Furthermore, the
Claimant mentioned and provided FIFA with the relevant acknowledgement
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receipt, that it had paid an amount of USD 10,000 to the player’s representative,
Mr X.
31.
With regard to the release of the Respondent 1 for his international duties, the
Claimant affirmed that it had released the player three times, in November 2003,
February and March 2004. However, the Claimant explained that the Respondent
1 had failed to come back after the third release in March 2004.
32.
Equally, the Claimant clarified that, considering that the Respondent 1 was
apparently performing in an unmotivated way, it had accepted to transfer him on
a loan basis from 30 March until 31 December 2004 to the Respondent 2, without
receiving any loan fee and provided that the Respondent 2 would pay his salary
during this period. In this context, the Claimant submitted FIFA, inter alia, a
correspondence dated 24 March 2004 from the Respondent 1, by means of which
he declared that the Respondent 2 would pay his salary instead of the Claimant
and that he would come back to the club C at the expiry of the loan period.
33.
The Claimant added, in that regard, that, since it could not count on the
Respondent 1’s return, it had to engage another foreign player, for whom it had
paid a signing fee of USD 75,000 and a monthly salary of USD 25,000 as of 11
February until 16 July 2004. In this respect, the Claimant presented a copy of the
registration card of the said player, without, however, providing any documentary
evidence regarding the allegedly paid monies.
34.
In continuation, the Claimant outlined that, at the end of the loan period, it had
phoned the Respondent 1 and requested his return to the club. In this respect, the
Respondent 1 allegedly refused to return to the Claimant and declared that he
would not like to play for a second division team in U after having played for a
first division club in E.
35.
Subsequently, the Claimant insisted on the fact that, since that moment, it had
been apparently no longer aware of the Respondent 1’s whereabouts and contact
details.
36.
Additionally, the Claimant stated that, on 8 February 2005, a C agent, Mr Z, had
presented it an offer from the Respondent 4 dated 4 February 2005, by means of
which the latter club offered to pay to the Claimant a transfer compensation of
USD 170,000 for the transfer of the Respondent 1. In this respect, the Claimant
presented the relevant document to FIFA. However, according to the Claimant,
and notwithstanding the fact that the negotiations did not succeed, the
Respondents 1 and 4 had in fact signed an employment contract, without the
Claimant having known or approved the transfer.
37.
The Claimant further outlined that, as soon as it was aware of the Respondent 1’s
whereabouts, it had asked, on 23 July 2005, its Association to request the
Respondent 1’s ITC from the FEF. In this context, the Claimant stipulated that,
upon request of the U Football Association dated 24 July 2005, the FEF informed it
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that the ITC of the Respondent 1 had been sent to the C Fútbol Asociación on 30
August 2004.
38.
The Claimant also stated that the Respondent 1 had been transferred from the
Respondent 4 to the Respondent 5 during the 2005/2006 season and then to the
Respondent 6, without its consent.
39.
For all these reasons, the Claimant concluded that:
the Respondent 1 had breached the contract without just cause
during the protected period,
the Respondent 1 shall pay a compensation of USD 250,000
composed of the signing fee (USD 200,000) and 5 monthly salaries
in the amount of USD 10,000 each, which had been paid to the
Respondent 1 at the time he was at the club,
the Respondents 2, 3 and 4 shall be jointly and severally liable with
the Respondent 1 to pay the aforementioned compensation,
the Respondent 1 had not been correctly registered with the
respective affiliates of the C Fútbol Asociación, the R and the
Football Federation (FVF), and, consequently the aforementioned
Football Associations shall declare all the games in which the
Respondent 1 took part as lost and deduct the points accordingly,
disciplinary measures shall be imposed on the FVF due to the fact
that the Respondent 1 had not come back to the U following his
summons with the association team of the FVF,
sporting sanctions shall be imposed on the Respondents 1, 2, 3, 4
and 5, since the breach of contract committed by the Respondent 1
occurred during the protected period.
40.
On 19 February 2007, FIFA informed the Claimant that it could not intervene with
regard to the request to impose disciplinary sanctions on the FVF due to
prescription.
41.
On 22 February 2007, the Respondent 1 adhered to his position and rejected the
Claimant’s claim based on the alleged fact that the Claimant was not interested in
his services and that it had always known to which club he was transferred. He
confirmed that he had been deceived by the Claimant and his representative at
the signature of the contract. He added, without, however, providing any
documentary evidence, that he had only received the amount of USD 50,000 out
of the total amount of USD 200,000 paid as a signing fee, the remaining part
having been devoted to his agent, Mr X.
42.
He further held that the Claimant had started to neglect him and to take him out
of the first team when he got injured in February 2004 and when the Claimant
decided to hire the services of another foreign player.
43.
The Respondent 1 repeated the fact that the Claimant had always been informed
of his subsequent transfers, inter alia, to the Respondents 3 and 4, either via
phone conversations or via letters.
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44.
The Respondent 1 further stated that, in December 2004, January and February
2005, several correspondence had been exchanged between the Claimant and
himself or Mr Z, his agent. In this respect, the Respondent 1 based his
argumentation on the offer dated 4 February 2005 sent to the Claimant - and
presented by the latter to FIFA - by the Respondent 4. Furthermore, the
Respondent 1 also held that that some exchange of correspondence had occurred
between the Claimant and Mr Y, another player’s representative, regarding his
potential transfer to the Respondent 5. In this respect, the Respondent 1 remitted
to FIFA three additional correspondence addressed by Mr Y to the Claimant as
well as a non-signed correspondence from the Claimant dated 2 July 2005, written
on its letter-head and addressed to the said agent, by means of which it had
apparently agreed upon the Respondent 1’s transfer to the Respondent 5 for a
transfer compensation of USD 180,000 (cf. no I.B.25).
45.
On 27 February 2007, the FVF informed FIFA that the Respondent 1 did not appear
to have been registered for the Respondent 6. Furthermore, it sustained the
Respondent 1’s position as to the substance.
46.
On 12 April 2007, the Respondent 3 rejected the Claimant’s claim and emphasized
that the Respondent 1 had always been transferred in conformity with the
pertinent regulations, since the relevant ITC had always been issued by one
Association in favour of another one. It further stated that it had always acted in
good faith. In this regard, the Respondent 3 submitted the contract signed with
the Respondent 1 on 23 August 2004 and valid until 23 December 2004 (art. 1).
47.
On 29 October 2007, the Respondent 4 maintained its position.
48.
On 25 January 2008, the Respondent 5 rejected the claim and argued that, at the
moment of the Respondent 1’s transfer to its club, it had acted in good faith, since
the ITC had been issued by the C Fútbol Asociación. Thus, according to the
Respondent 5, it should not be held responsible for a possible mistake made by C
Fútbol Ascociación.
49.
On 28 February 2008, the Respondent 2 reiterated its conclusions, adding that it
had not been involved in the Respondent 1’s transfer to L since the parties had
mutually agreed to terminate their contractual relationship in May 2004, date on
which the Respondent 1 had apparently left E for V without contacting the
Respondent 2 anymore. Thus, the Respondent 2 maintained that it could not have
induced the Respondent 1 to breach his contract. Therefore, according to the
Respondent 2, the Respondent 1 was the sole responsible, for not having returned
to the Claimant in December 2004 at the expiry of the loan period. The
Respondent 2 added that, when the C Fútbol Ascociación requested the relevant
ITC, it had accepted to remit the international clearance, in order to avoid any
problem and because it had not heard anything from the Respondent 1 and from
the Claimant.
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50.
Despite having been invited twice to do so, the Respondent 6 did not submit any
position to FIFA.
51.
On 13 July 2009, the FVF informed FIFA once again that the Respondent 1 had not
been registered for the Respondent 6 but in fact for club M.
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, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008). The present matter was submitted
to FIFA on 12 September 2005, thus before the aforementioned Rules entered into
force on 1 July 2008. Therefore, the Chamber referred to art. 18 par. 2 and 3 of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (DRC) (hereinafter: Procedural Rules; edition 2005)
and concluded that the 2005 edition of the Procedural Rules is applicable to the
matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 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 concerns an employment-related dispute with an
international dimension between club C, a V player, an E, two C, a R and a V club.
3.
In this respect, the Chamber was eager to emphasize that the member of the
Dispute Resolution Chamber as a clubs’ representative, Mr H, refrained from
participating in the deliberations of the case at hand, on the basis that he holds
the same nationalitiy as the Claimant. Therefore, and in view of maintaining the
parity between players’ and clubs’ representatives, the Dispute Resolution
Chamber adjudicated the case in presence of three members in accordance with
art. 24 par. 2 of the Regulations on the Status and Transfer of Players (edition
2008).
4.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2008) and,
on the other hand, to the fact that the present claim was lodged on 12 September
2005 and that the relevant employment contract was signed in October 2003. The
Dispute Resolution Chamber concluded that the 2005 version of the Regulations
for the Status and Transfer of Players (hereinafter: the Regulations) is applicable
to the matter at hand as to the substance.
5.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter.
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6.
In doing so, the Chamber firstly acknowledged that it was not contested by the
parties that, on 5 October 2003, the Claimant and the Respondent 1 had
concluded an employment contract valid until October 2007.
7.
In continuation, the Chamber pointed out that it was undisputed, by all the
relevant parties, that the Respondent 1 had been transferred on a loan basis from
the Claimant to the Respondent 2 for an agreed period of nine months as from 30
March 2004 until 31 December 2004.
8.
In this context, the Dispute Resolution Chamber was eager to emphasize that the
Respondent 1 basically had the obligation to return to the Claimant at the expiry
of the aforementioned loan period on 31 December 2004. Indeed, the members of
the Chamber recalled that the rights and obligations deriving from the contract,
which were suspended during the period of the loan, were again in force as from
1 January 2005.
9.
In continuation, the members of the Chamber took note that the Respondent 1
had undoubtedly not remained with the Respondent 2 until the expiry of the
agreed loan period, i.e. 31 December 2004. Indeed, the Chamber noted that the
relevant ITC of the Respondent 1 had been issued by the FEF in favour of the C
Fútbol Ascociación on 30 August 2004 and that both the Respondents 1 and 2
acknowledged having prematurely terminated their contractual relationship.
10.
Equally, the members of the Chamber remarked that the Respondents 1 and 3 had
admitted having concluded an employment contract valid as from 23 August until
23 December 2004.
11.
In this context, the Chamber pointed out that the employment contract between
the Respondents 1 and 3 had been concluded for a period comprehended in the
loan period that had been previously agreed upon between the Claimant and the
Respondent 2. As a consequence, the members of the Chamber noted that the
said employment contract could not, as such, affect the contract between the
Claimant and the Respondent 1, since its application was suspended during the
validity of the said loan agreement. On account of the foregoing, the Chamber
did not deem it appropriate to enter into the substance of this agreement and to
analyse whether it had been concluded with the Claimant’s consent or not.
12.
Equally, and following the chronology of the Respondent 1’s transfers, the
members of the Chamber acknowledged that the Respondent 4 admitted that the
Respondent 1 had been transferred nationally within the C Fútbol Asociación from
the Respondent 3 to the Respondent 4 and that they had concluded an
employment agreement valid as from 18 January 2005 until the end of the
Respondent 4’s participation in the 2005 national Championship.
13.
Moreover, the members of the Chamber highlighted that the conclusion of an
employment contract between the Respondents 1 and 4 had also been
corroborated by the Respondent 1’s statement.
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14.
On account of the above, the Chamber reckoned that it was undisputed that the
Respondents 1 and 4 had concluded an employment contract in January 2005.
15.
Having stated the above, and bearing in mind that the Respondent 1 had the
apparent obligation to return to the Claimant after the expiry of the loan
agreement on 31 December 2004, the Chamber turned its attention to the analysis
of the circumstances surrounding the signature of the employment contract
between the Respondents 1 and 4. In other words, the Chamber examined
whether the Claimant had agreed upon the transfer of the Respondent 1 to the
Respondent 4 from January 2005 on.
16.
Thus, and with regard to possible negotiations held in this context between the
relevant parties, the Chamber firstly noted that the Claimant stated that, on 8
February 2005, an agent, Mr Z, had presented it an offer from the Respondent 4
dated 4 February 2005, by means of which the latter club had offered to pay to
the Claimant a compensation of USD 170,000 for the transfer of the Respondent 1.
However, the Chamber noted that, according to the Claimant, the negotiations
had not succeeded and that the Claimant had not authorised the said transfer.
17.
Equally, and notwithstanding the foregoing, the Chamber took note that the
Respondent 4 maintained not having had any contact with the Claimant in view of
negotiating the Respondent 1’s transfer.
18.
The Chamber also referred to the argumentation of the Respondent 1, who
affirmed that the Claimant had authorised the said transfer – as well as all the
other transfers mentioned in the claim – via telephone conversations (or letters)
and that the Claimant was allegedly not interested in his services anymore.
19.
In that regard, the Chamber deemed it appropriate to refer to the general
principle of burden of proof, stipulated in art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact shall
carry the burden of proof and pointed out that the Respondent 1 had not
submitted any convincing documentary evidence undoubtedly establishing that
the Claimant was not interested in the Respondent 1’s services and that it had
expressly consented on his transfer to the Respondent 4. The Dispute Resolution
Chamber was thus of the opinion that it could not follow the Respondent 1’s
argumentation in this respect.
20.
In view of the above, the members of the Chamber had no other alternative but
to consider that it was likely that some contacts had occurred between the
Claimant and the Respondent 4 but that it was unlikely that the relevant parties
had reached an agreement upon the transfer of the Respondent 1 to the
Respondent 4 and, consequently, that the Claimant had approved the said transfer
and the conclusion of an employment contract between the Respondents 1 and 4.
21.
On account of the foregoing, the Dispute Resolution Chamber concluded that the
Respondents 1 and 4 concluded an employment contract, although an
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employment contract was in force between the Claimant and the Respondent 1
until October 2007.
22.
Having taken into consideration the foregoing elements, the Chamber referred to
art. 18 par. 5 of the Regulations, which stipulates that “If a professional enters
into more than one contract covering the same period, the provisions set forth in
Chapter IV shall apply.”.
23.
Thus, by refusing to return to the Claimant on 1 January 2005 and the Respondent
1 signing a new employment contract with the Respondent 4 in January 2005, the
Chamber considered that the Respondent 1 had breached the contract concluded
with the Claimant without just cause.
24.
In this respect, the members of the Chamber referred to item 7. of the
“Definitions” section of the Regulations, which stipulates, inter alia, that the
protected period shall last “for three entire seasons or three years, whichever
comes first, following the entry into force of a contract, where such contract is
concluded prior to the 28th birthday of the professional”. In this respect, the
Chamber took note that the breach of contract occurred on 18 January 2005, i.e.
when the Respondents 1 and 4 concluded an employment contract. Therefore, the
Chamber concluded that the breach had occurred one year and approximately 4
months following the entry into force of the contract, hence, in any case, within
the protected period.
25.
Having stated the above, the Chamber turned its attention to the question of the
consequences of such breach of contract during the protected period committed
by the Respondent 1.
26.
In doing so, the Dispute Resolution Chamber first of all established that, in
accordance with art. 17 par. 1 of the Regulations, the Respondent 1 is liable to pay
compensation to the Claimant.
27.
Prior to proceeding to the calculation of the amount of compensation, the
Chamber put emphasis on the primacy of the principle of the maintenance of
contractual stability, which represents the backbone of the agreement between
FIFA/UEFA and the European Commission signed in March 2001. This agreement
and its pillars represent the core of the editions 2001 and 2005 as well as of the
2008 and 2009 version of the Regulations, which all stakeholders – including
player and club representatives – agreed upon in 2001.
28.
Above all, the Chamber was eager to point out that the measures provided for by
the Regulations concerning in particular compensation for breach of contract
without just cause serve as a deterrent discouraging the early termination of
employment contracts by either contractual party and that a lack of a firm
response by the competent deciding authorities would represent an inappropriate
example towards all the football stakeholders.
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29.
In this respect, awarding compensation in favour of the damaged party (either the
player or the club, as the case may be) has proven to be an efficient mean and has
always found a widespread acceptance since it guarantees that the fundamental
principle of the respect of the contracts is duly taken care of.
30.
Above all, it was emphasised that the criteria contained in article 17 of the
Regulations are applied with the principle of reciprocity for clubs and players,
signifying that both clubs and professionals who are seen to have committed a
breach of contract without just cause will in all cases be subject to pay
compensation and, under specific circumstances, also subject to the imposition of
sporting sanctions.
31.
Having stated the above, the Chamber focussed its attention on the calculation of
the amount of compensation for breach of contract in the case at stake. In doing
so, the members of the Chamber firstly recapitulated that, in accordance with art.
17 par. 1 of the Regulations, the amount of compensation shall be calculated in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the
specificity of sport and further objective criteria, including in particular the
remuneration and other benefits due to the player under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years as well as 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. The Dispute Resolution Chamber recalled
that the list of objective criteria is not exhaustive and that the broad scope of
criteria indicated tends to ensure that a just and fair amount of compensation is
awarded to the prejudiced party.
32.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the relevant employment contract between the Respondent
1 and the Claimant contains a provision by which the parties had beforehand
agreed upon an amount of compensation for breach of contract. Upon careful
examination of the contract, the members of the Chamber assured themselves
that this was not the case in the matter at stake.
33.
As a consequence, the members of the Chamber determined that the prejudice
suffered by the Claimant in the present matter had to be assessed in application of
the other parameters set out in art. 17 par. 1 of the Regulations. In this regard, the
Dispute Resolution Chamber emphasised beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a caseby-case basis taking into account all specific circumstances of the respective
matter.
34.
In casu, the Dispute Resolution Chamber took note that the Claimant was claiming
the payment of a compensation of USD 250,000 composed of the signing fee of
USD 200,000 and of 5 monthly salaries in the amount of USD 10,000 each, which
had been paid to the Respondent 1 at the time he was at the club.
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35.
Consequently, in order to establish the amount of compensation due to the
Claimant in the present case, the Chamber firstly turned its attention to the
remuneration and other benefits due to the player under the existing contract. In
this context, the members of the Chamber deemed it important to emphasize that
the wording of article 17 par. 1 of the Regulations allows the Dispute Resolution
Chamber to take into consideration the existing contract only in the calculation of
the amount of compensation.
36.
In this regard, the Dispute Resolution Chamber established, on the one hand, that
the contract, signed in October 2003, had been set to expire in October 2007 and
provided for a monthly salary of USD 5,000 after the first ten months of the
contract, i.e as from July 2004, and, on the other hand, that the Claimant
requested, in that regard, the reimbursement of five monthly salaries.
37.
Thus, the Chamber considered that the amount of compensation due to the
Claimant in connection with the above-mentioned criterion shall be equal to a
total of five monthly salaries of USD 5,000, i.e. USD 25,000.
38.
In continuation, the members of the Chamber turned to the essential criterion
relating to the fees and expenses possibly paid by the former club for the
acquisition of the player’s services insofar as these have not yet been amortised
over the term of the relevant contract.
39.
In this respect, the Chamber held that the Claimant maintained having paid to the
Respondent 1 a signing fee of USD 200,000 and provided FIFA with an undated
agreement as well as with an acknowledgement of receipt related thereto signed
by the Respondent 1.
40.
Equally, the members of the Dispute Resolution Chamber turned their attention to
the allegations of the Respondent 1, who declared that he had only received the
amount of USD 50,000 out of the total amount of the aforementioned USD
200,000, without, however, submitting any documentary evidence in support of
these allegations.
41.
In light of the foregoing, and referring, once again, to art. 12 par. 3 of the
Procedural Rules, the Dispute Resolution Chamber had no other alternative but to
conclude that the Claimant had paid to Respondent 1 the whole amount of USD
200,000 pertaining to the signing fee.
42.
Bearing in mind that the relevant breach of contract committed by the
Respondent 1 occurred in January 2005, the Chamber acknowledged that the nonamortised part of the signing fee amounts to USD 137,500.
43.
In sum, the Chamber concluded that the compensation for breach of contract
without just cause to be paid by the Respondent 1 to the Claimant amounts to
USD 162,500, which is composed of the amount of USD 25,000 being the amount
of five monthly salaries due to the Respondent 1 under the contract as well as the
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amount of USD 137,500 being the non-amortised fraction of the signing fee paid
by the Claimant.
44.
In continuation, the Chamber focused on the further consequences of the breach
of contract in question and, in this respect, addressed the question of sporting
sanctions to be imposed on the Respondent 1 in accordance with art. 17 par. 3 of
the Regulations. The cited provision stipulates that, in addition to the obligation
to pay compensation, sporting sanctions shall be imposed on any player found to
be in breach of contract during the protected period.
45.
In this regard, the Dispute Resolution Chamber recalled that, as established under
point II.24. above, the breach of contract by the Respondent 1 had occurred
during the protected period. Consequently, the Chamber decided that, by virtue
of art. 17 par. 3 of the Regulations, the Respondent 1 had to be sanctioned with a
restriction of four months on his eligibility to participate in any official football
match. This sanction shall take effect from the start of the next season of the
Respondent 1’s club following the notification of the present decision.
46.
Furthermore, and with regard to the joint and several liability of the Respondent 4
for the payment of compensation for the breach of contract, the Chamber
referred to art. 17 par. 2 of the Regulations, according to which the professional
and his new club shall be jointly and severally liable to pay compensation.
47.
In this respect, and taking into consideration that the pertinent breach of contract
by the Respondent 1 occurred in January 2005 and that the latter concluded an
employment contract with the Respondent 4 in January 2005, the Chamber
concluded that the player’s new club in the sense of the aforementioned provision
was the Respondent 4. As a consequence, the Dispute Resolution Chamber
decided that the Respondent 4 is jointly and severally liable to pay the
compensation to the Claimant.
48.
Furthermore, for the sake of completeness, and although the joint and several
liability of the new club is independent of any inducement to a breach of contract
by the latter, the Chamber was eager to stress that, based on the correspondence
dated 4 February 2005 from the Respondent 4 to the Claimant, and
notwithstanding its declarations to the contrary, the Respondent 4 was or should
at least have been aware of an ongoing valid contractual relationship between
the Claimant and the Respondent 1 and could not, therefore, invoke its good
faith.
49.
Finally, the members of the Chamber analysed the question whether, in view of
art. 17 par. 4 of the Regulations, the Respondent 4 must be considered to have
induced the Respondent 1 to breach his contract with the Claimant without just
cause during the protected period.
50.
In this respect, the Chamber considered that, in view of all the circumstances of
the case, in particular bearing in mind that the Respondent 1 had played with two
different clubs before joining the Respondent 4 and that the FEF had issued the
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ITC of the player upon request of the C Fútbol Ascociación, the latter could not
have induced the Respondent 1 to breach his contract and that, consequently, no
sporting sanctions had to be imposed on the Respondent 4.
51.
In conclusion, the Dispute Resolution Chamber decided that the Respondent 1 has
to pay USD 162,500 to the Claimant as compensation for the breach of his
employment contract without just cause during the protected period. In this
respect, the Dispute Resolution Chamber also determined that the Respondent 4 is
jointly and severally responsible for the payment of the above-mentioned amount
of compensation to the Claimant.
52.
Furthermore, the Chamber decided that the Respondent 1 shall be sanctioned
with a restriction of four months on his eligibility to participate in official football
matches, taking effect as from the start of the next season of the player’s new
club following the notification of the present decision.
53.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
***
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, C, is partially accepted.
2.
The Respondent 1, P, has to pay to the Claimant, C, the amount of USD 162,500
within 30 days as from the date of notification of this decision.
3.
The Respondent 4, D, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
5.
The Claimant, C, is directed to inform the Respondent 1, P, and the Respondent 4,
D, 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.
6.
A restriction of four months on his eligibility to play in official matches is imposed
on the Respondent 1, P. This sanction shall take effect as of the start of the next
season of the Respondent 1’s new club following the notification of the present
decision.
7.
Any further claims lodged by the Claimant, C, are rejected.
******
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Note relating to the motivated decision (legal remedy):
According to art. 63 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber
Jérôme Valcke
Secretary General
Encl. CAS directives
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