Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed via videoconference, on 18 June 2020,
regarding an employment-related dispute concerning the player Erald CINARI
COMPOSITION:
Geoff Thom ps on (England), Chairman
Moham ed Muzamm il (Singapore), member
S tefano S artori (Italy), member
CLAIMANT:
NK ISTRA 1961, Croatia
Represented by Mr Vicente Montes & Ms Tayba Jawad
RESPONDENT 1:
ERALD CINARI, Albania
RESPONDENT 2:
FK PARTIZANI, Albania
INTERVENING PARTY:
KF VLLAZNIA SHKODER, Albania
Tel: +41 43/222 7777 [email protected]
REF 19-00348
I. FACTS OF THE CASE
1.
On 1 August 2017, the Albanian player, Erald Cinari, born on 11 October 1996 (hereinafter: the
player or Respondent 1) and the Albanian club, KF Vllaznia Shkoder (hereinafter: Vllaznia or
Intervening Party) executed an employment agreement valid as from the same date until 31 May
2019.
2.
According to the information available on the Transfer Matching System (TMS), on 11 June 2018,
Vllaznia allegedly accepted an offer from the Spanish club, Deportivo Alavés (hereinafter: Alavés)
for the transfer of the player for EUR 20,000, payable by 4 July 2018. No transfer instruction was
entered in the TMS by either Alavés or Vllaznia regarding the transfer of the player.
3.
According to documentation found in TMS, allegedly on 15 June 2018, the Croatian club NK
Istra 1961 (hereinafter: Istra or the Claimant), the player, and Alavés apparently agreed on a
preferential call option for the latter to acquire the services of the player. However, such
agreement does not contain the signature of Alavés.
4.
On 2 July 2018, the player and the Claimant signed an employment contract valid from 15 June
2018 until 15 June 2021 (hereinafter: the contract). According to the contract, the player was
entitled to the following:
-
EUR 45,000 for the season 2018/2019;
EUR 50,000 for the season 2019/2020;
EUR 55,000 for the season 2020/2021.
5.
On 26 July 2018, the Claimant announced the player as its new signing to its fans and the media.
6.
On 8 August 2018, Vllaznia sent a letter to Alavés requesting information of the alleged transfer
of the player, and payment of EUR 20,000, claiming it was determined to “discover this fraud
scheme that is happening to the detriment of our club”.
7.
On the same date, the player sent an e-mail to Vllaznia putting it in default of payment of his
salaries between April and August 2018.
8.
On an unspecified date, but allegedly 8 August 2018, the player filed a claim against Vllaznia
before the national dispute resolution chamber of the Football Association of Albania
(hereinafter: the Albanian NDRC) requesting that his employment agreement with Vllaznia be
deemed terminated with just cause by the player.
9.
On 10 August 2018, the Claimant requested the player’s International Transfer Certificate (ITC)
via TMS to be issued by the Football Association of Albania and Vllaznia. According to the
information available in TMS, the transfer was initiated as “engage against payment”. Such
transfer instruction remains unanswered to date.
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10.
On 14 August 2018, Vllaznia issued a public statement via its Facebook page, according to
which: (a) it denied having reached an agreement with Alavés for the transfer of the player,
indicating that the amount of EUR 20,000 had been paid to an account in Italy which did not
belong to Vllaznia; (b) the documentation regarding an agreement with Alavés had been forged;
and (c) that no agreement had been reached with the Claimant for the transfer of the player,
either on a loan or permanent basis.
11.
On 29 August 2018, the Albanian NDRC rendered a decision whereby it rejected the claim of
the player to terminate the employment agreement between himself and Vllaznia for just cause.
12.
On 31 August 2018, the player, Vllaznia and the Albanian club, FK Partizani (hereinafter: Partizani
or the Respondent 2) a signed a transfer agreement whereby the player’s services were
transferred from Vllaznia to Partizani against a payment compensation of EUR 40,000
(hereinafter: the transfer agreement).
13.
The transfer agreement contained an annex, whereby the player and Vllaznia declared as follows
(quoted verbatim):
“1. That they have never signed any agreements with third parties, whether natural or legal
persons, from which such entities have benefited real or material rights over the Assignment of
the player’s licence or are entitled to the economic rights to the assignment of the player’s
licence.
2. That whichever club signing the assignment agreement between Vllaznia Football Club sh.a
and the player Erald Çinari, is freely entitled to these rigths without any claims or interference
from third parties.
3. That all claims made by a third party shall be subject oly to Vllaznia Football Club sh.a and to
the player Erald Çinari.”
14.
On the same date, i.e. 31 August 2018, the player and Partizani signed an employment contract
valid as from 31 August 2018 to 30 June 2021 (hereinafter: the new employment agreement),
according to which the player is entitled inter alia to a salary of EUR 700.
II. PROCEEDINGS BEFORE FIFA
15.
On 7 February 2019, the Claimant lodged a claim before FIFA against the player and Partizani
for breach of contract. A brief summary of the position of the parties is detailed in continuation.
A. Claim of Istra
16.
According to the Claimant, after being presented as part of the squad, the player joined his
teammates in regular training.
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17.
The Claimant explained that during the month of August 2018, and with its authorization, the
player returned to Albania for “family reasons”, but that only a few weeks later “shockingly
enough, he started playing for FK Partizani, without even having formally communicated his
unilateral early termination”.
18.
The Claimant claims that any problem related to Vllaznia and the alleged non-authorized release
of the player, as Vllaznia had purportedly announced, is not relevant in regards to the fact that
“the Player was, from 2 July onwards, under employment with [the Claimant]”.
19.
The Claimant explained that the player signed the contract after Vllaznia had accepted to let him
go in exchange for a fixed amount, “which was duly paid” by Alavés to Vllaznia “on behalf of
the Claimant” in order for Vllaznia to release the player. According to the Claimant, Alavés made
the payment “due to the long and close relationship between both clubs related to the training
of players”.
20.
The Claimant claims that it requested the player’s ITC to FIFA, but “what exactly happened next
is unfortunately unknown to this party, presumable the former club objected”. The Claimant
claims that before receiving a provisional ITC, the player terminated the contract.
21.
Moreover, the Claimant submits that on 29 August 2018, the Albanian NDRC rendered a
decision stating that the player was “not free, and that he remained a player of the Vllaznia”.
The Claimant states that during such proceedings the player never submitted a copy of the
contract, nor informed that a TMS transfer instruction had allegedly not been answered.
22.
Istra further states that “since the moment the player signed the contact on 2 July 2018, he was
not in the position of signing a new employment contract”. The Claimant claims that since the
player signed a new contract with Partizani, he breached the contract.
23.
According to the Claimant, it is evident that Partizani is the new club in the sense of Art. 17 par.
2 of the FIFA Regulations on the Status and Transfer of Players. In this regard, the Claimant
argued that Partizani acknowledges that a termination without just cause exists and intends to
shift the liability for such termination onto Vllaznia. In this respect, the Claimant stated that only
Partizani can be considered as the “new club”, for it was the Respondent 2 who signed the new
employment contract after the contract was executed on 2 July 2018.
24.
Additionally, the Claimant referred to the annex to the transfer agreement, and argued that it is
“undisputable that Partizani suspected that some trouble could exist, otherwise they would not
have demanded the Player or his former club to sign or guarantee anything”.
25.
According to the Claimant, it cannot be denied that the early termination of the contract took
place within the protected period, thus “the player must face a four month restriction on playing”
in accordance with Art 17 par. 3 of the FIFA Regulations on the Status and Transfer of Players. It
further submitted that “even in the case where [Partizani] did not encourage the Player’s early
termination of his employment contract, [Partizani] is still jointly liable and subject to sporting
sanctions”.
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26.
Accordingly, the Claimant requested the following relief:
-
-
To declare that the player terminated the contract without just cause within the protected
period, and therefore the Claimant is owed EUR 220,000 in compensation in accordance with
the following breakdown:
o EUR 150,000 in amount that would have been paid to the Player;
o EUR 20,000 in amount paid for the release of the Player;
o EUR 50,000 for breach of contract during the protected period.
To declare that the player’s new club induced said termination of contract and therefore is
jointly liable for it;
To impose the corresponding sporting sanction on both the Respondent 1 and the Respondent
2;
To declare that all costs to be borne by the Respondent 1 and the Respondent 2.
B. Position of the player
27.
The player, for his part, rejected the Claimant’s claim. He argued that, following a failed transfer
to Alavés, he was informed by Vllaznia that its intention was to “surrender [him], given the
relegation to the league”.
28.
According to the player, he was informed that the Claimant wanted to “borrow” him for one
year. The player claims he received a contract and asked for a translation as he did not understand
Spanish or Croatian, but that this was allegedly refused.
29.
The player further claims that he thought that the contract signed with the Claimant was an
annual loan, and that after “signing” with the Claimant, the latter informed him that he had to
return to Albania as Vllaznia failed to deliver documents to complete the loan. Subsequently, the
player claims that he followed the direction of Vllaznia and signed with Partizani.
30.
Additionally, according to the player, all he did was trust the instruction of Vllaznia, since he had
confidence in his old club, trusted it, and followed its instructions. The player is of the position
that “my card was always owned by [Vllaznia], until the transfer to [Partizani]”.
31.
The player did not make any particular request for relief.
C. Position of Partizani
32.
The Respondent 2, for its part, also rejected the Claimant’s claim.
33.
According to Partizani, it was interested in engaging the player from Vllaznia for the season of
2018/2019. Partizani states that on 31 August 2018 it approached Vllaznia in order to initiate a
negotiation for the permanent transfer of the player.
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REF 19-00348
34.
Partizani further explained that, on 31 August 2018, it concluded the transfer agreement and
paid a compensation of EUR 40,000 to Vllaznia for the transfer of the player. Moreover, the
Respondent 2 argued that such transfer agreement included a “warranty” that Vllaznia was the
sole party having the right to transfer the “player’s card”, and that it would be the sole
responsible in case of any claims raised by any third parties.
35.
In this regard, Partizani deems that it was assured that Vllaznia was the only party entitled to
transfer the “player’s card” and that the player had never signed a contact with any other party.
36.
According to Partizani, upon receiving notice from FIFA about the existence of the claim at hand,
it contacted the Football Association of Albania, which provided a statement according to which
“no requests for the release of the player Erald Cinari (…) [were] made by any other association”
between 1 June 2018 and 31 August 2018.
37.
In regards to the contract, Partizani underlined that “it appears that the player had signed a
contract with the Claimant, but, our party was not in a position to know this fact. As we have
proved, in the local media was only reported that the Player was to join the Spanish club,
Deportivo Alavés, not the Claimant. In the circumstance that no requests for the issuance of the
International Transfer Certificate for the Player was made by any association to the Albanian
Football Association, our party objectively, could have not been aware of the fact that the
Claimant and the Player had concluded an employment agreement. In other words, our club was
in complete bona fidae towards all the involved parties”. Additionally, the Respondent 2 contests
the authenticity of the contract in light of the fact that no original versions of such document
were produced.
38.
Partizani brought forward evidence that the player had submitted a claim in front of the Albanian
NDRC requesting from the national body to determine that he had unilaterally terminated the
employment relationship with Vllaznia with just cause, and that this body should consider him a
“Free Player”. According to Partizani, if the Claimant and the player had signed the contract,
why did the player file a claim in front of the NDRC, on 8 August 2018, against Vllaznia?
39.
Moreover, Partizani is of the opinion that it is “completely inconsistent” with the Claimant’s
claim that an agreement for the transfer of the player was concluded by the Claimant with
Vllaznia, presumably on 2 July 2018, with the fact that the player submitted a claim against
Vllaznia for the termination of the employment relationship with the latter on 8 August 2018.
Ergo, Partizani deems that the main issue of this case is: which club was the holder of the
economic and federative rights over the “Player’s Card” during the period between 02 July 2018
and 31 August 2018?
40.
According to Partizani, “By the agreement of date 31.08.2018, the club which apparently was
the owner of the economic and federative rights over the Player’s Card assumed all
responsibilities for any claims presented by any club concerning the transfer of Respondent 1 at
our club. In this perspective, in the quality of correspondent should be called Vllaznia, not our
party”.
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41.
In continuation, Partizani provided the following arguments to demonstrated that it had not
induced a unilateral termination of the contract by the player with the Claimant:
-
-
-
-
-
42.
43.
it never illegally approached the player or any other club. On 14 August 2018, Vllaznia issued
a public statement by the means of which it was clarified that Erald Cinari was still a player of
Vllaznia, and that no agreements for his transfer was concluded with any club, including the
Claimant or Alavés;
on 15 August 2018, the player responded to this statement, by claiming that he was a player
of Alavés, not of the Claimant, and because of the divergences with Vllaznia, he would have
never returned to the latter;
the fact that no request for the issuance of the ITC was made to the Football Association of
Albania, supposedly corroborated Vllaznia’s public statement that no agreements were signed
with any club for the transfer of the player;
the fact that the player had submitted a claim against Vllaznia in front of the Albanian NDRC,
on 8 August 2018, supposedly corroborated Vllaznia’s claim that no agreement was signed
with any club for the transfer of the player;
The fact that the Albanian NDRC rejected the player’s claim concerning the unilateral
termination with just cause of the employment relationship with Vllaznia, corroborated
Vllaznia’s statement that the Respondent 1 was a player of the latter and that the parties had
a valid contract between them.
In continuation, Partizani presented the following perspective in order to substantiate its position
that it was not to be considered the player’s new club:
Vllaznia
The Claimant
Vllaznia
Respondent 2
Date:
01.07.2018
Date:
02.07.2018
Date:
29.08.2018
Date:
31.08.2018
Finally, Partizani claimed it had acted with the utmost caution concerning the negotiation for the
player with Vllaznia. The Respondent 2 concluded its submissions by requesting the “complete
rejection of the claim or alternatively, the considering of our party as non-responsible for any
inducement towards the Player for the breach of contract with the Claimant and consequently,
the exclusion of our party from the responsibility to pay compensation towards the Claimant and
the exclusion from any eventual disciplinary sanction”.
D. Position of Vllaznia
44.
Vllaznia, for its part, did not make any substantive submissions. It limited itself to file copies in
Albanian of the employment contract executed with the player, and the transfer agreement
executed with Partizani and the player.
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III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
A. Competence and applicable legal framework
45.
First of all, the Dispute Resolution Chamber (hereinafter referred to as DRC or the Chamber)
analysed whether it was competent to deal with the matter at hand. In this respect, it took note
that the present matter was submitted to FIFA on 7 February 2019. Taking into account the
wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
46.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that in
accordance with art. 24 par. 1 in combination with art. 22 lit. b of the Regulations on the Status
and Transfer of Players (edition June 2020), it is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a
Croatian club, an Albanian player, and two Albanian clubs.
47.
In continuation, the DRC analysed which regulations should be applicable as to the substance of
the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and par. 2 of the
Regulations on the Status and Transfer of Players (edition June 2020), and considering that the
present claim was lodged on 7 February 2019, the June 2018 edition of said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the substance.
48.
The competence of the DRC and the applicable regulations having been established, the DRC
entered into the substance of the matter. In this respect, the DRC started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file. However,
the DRC emphasised that in the following considerations it will refer only to the facts, arguments
and documentary evidence, which he considered pertinent for the assessment of the matter at
hand.
B. Burden of proof
49.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the
Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. Likewise, the DRC stressed the wording of art. 12 par. 4 of
the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.
50.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of
the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to
the application of the Regulations, any documentation or evidence generated or contained in
TMS.
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C. Merits of the dispute
I.
Main legal discussion and considerations
51.
The Chamber started by taking note of the facts regarding the player’s move to Alavés, and
observed that the case lacks sufficient evidence in support of the facts surrounding the player’s
relation to such club as the parties brought them forward. In particular, the documentation
available was found by the Chamber to be either absent or inconsistent. Consequently, the
Chamber was of the opinion that it remained unclear what, if any, transaction was agreed
between the player, Vllaznia, the Claimant, and Alavés.
52.
Consequently, given the uncertainty of the facts that took place, the Chamber concluded that
this could only be considered as a failed transfer, as the player indeed never executed any
employment contract, nor played, for Alavés.
53.
In continuation, the Chamber entered into the substance of the matter and, by doing so, it
outlined that the facts detailed in continuation remained proven in light of the parties’
submissions and the evidence on file.
54.
Firstly, the DRC considered that it was proven that the player signed the contract with the
Claimant on 2 July 2018. In particular, the DRC observed that the player himself does not deny
having executed the contract, but rather claims he believed it to be a loan agreement, as he did
not speak Spanish nor Croatian. The submissions by the Claimant and the Respondent 1, in the
Chamber’s view, also confirmed the execution of the contract, as a copy of such document had
been filed by the Claimant with its statement of claim and uploaded, by the Claimant, to TMS in
connection with the transfer instruction of the player.
55.
In this regard, the Chamber addressed the player’s argument that he did not understand the
terms of the contract as said contract was drafted in Spanish and Croatian, both languages that
he allegedly does not understand. In this regard, the Chamber was eager to refer to its
longstanding and well-established jurisprudence, and emphasised that a party signing a
document of legal importance without knowledge of its precise contents, as a general rule, does
so on its own responsibility. In light of the above, the Chamber concluded that the player’s
argument of reported ignorance of Spanish/Croatian cannot be upheld.
56.
Moreover, the Chamber found no reason to doubt the authenticity of the contract as argued by
the Respondent 2, given the fact that both parties to such contract, i.e. the player and Istra,
expressly confirmed its existence and execution. Accordingly, the Chamber decided to reject the
argumentation of the Respondent 2 in this regard.
57.
Secondly, the DRC found that it was undisputed that the player, Partizani, and Vllaznia executed
the transfer agreement on 31 August 2018. The Chamber underlined that all parties explicitly
recognized such fact.
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58.
Thirdly, the Chamber concluded that it was also undisputed that the player and Partizani
executed the new employment agreement on 31 August 2018. Equally to the transfer
agreement, the parties in their submissions confirmed the execution of such new contract.
59.
Having established the above, the Chamber observed that the fundamental disagreement
between the parties, at the basis of the present dispute, is in fact the consequence of the
execution of both the transfer agreement and the new employment contract.
60.
On the one hand, Istra claims that the contract concluded with the player was valid, and was
breached by the player. In other words, the Claimant is of the position that the player unilaterally
terminated the contract without just cause by signing the new employment agreement with
Partizani. Istra also claims that Partizani is to be held jointly liable for such breach, as it is the
player’s new club.
61.
On the other hand, the Chamber noted that the Respondent 2 deems that it was in fact Vllaznia,
and not the Claimant, who allegedly had the rights regarding the registration of the player, i.e.
the so-called “federative rights” or “player’s card”, as explained by Partizani. What is more,
Partizani argued that it acted diligently to hire the player, and that it did not induce him to breach
the contract. In particular, the Respondent 2 deems not to be the player’s new club, as he was
supposedly registered with Vllaznia before joining Partizani, as the transfer agreement denotes.
62.
In view of the diverging positions of the parties, the Chamber deemed that it first would have to
address the issue of the validity of the contract vis-à-vis the issue of the registration of the player.
63.
In this sense, the DRC considered the parties’ submissions, and wished to emphasize, once again,
that the contract was indeed executed between the parties.
64.
The Chamber then recalled its longstanding jurisprudence, according to which the validity of an
employment contract cannot be made subject to administrative formalities, such as, in casu, the
registration of a player.
65.
Consequently, the Chamber decided that the issue of the registration of the player cannot be
considered for the purposes of assessing the validity of the contract, and the consequences
thereof. In other words, the DRC was of the firm position that whether the relevant
clubs/associations correctly proceeded with regards to the player’s registration with Istra has no
relevance on the validity of the contract.
66.
In this particular issue, the DRC deemed important to clarify that it seems that Istra and the
Croatian Football Federation, to which the Claimant is affiliated, apparently did not properly
request the intervention of FIFA once the Claimant did not receive a reply from Vllaznia. This
conclusion derives, in the Chamber’s view, from the fact that Istra only uploaded to TMS a
request for provisional registration, instead of requiring the Croatian Football Association to file
a request in line with articles 8 and 6, Annexe 3, of the Regulations, and articles 9 and 9bis of
the Procedural Rules. Nonetheless, the Chamber stressed, once again and for the sake of
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completeness, that a supposed failure by the parties concerned to adequately conclude the
transfer of the player has no impact on the validity of the contract.
67.
On account of the above, the Chamber came to the firm conclusion that the arguments of the
player and Partizani cannot be upheld and that the contract signed by and between the Claimant
and the player was a valid employment contract binding the parties thereto as from 15 June
2018 until 15 June 2021.
68.
Having so found, the Chamber followed its analysis and turned its attention to the question of
the alleged breach of contract without just cause by the player.
69.
The DRC turned to the argument of the player that he was “sent back” to Albania by the
Claimant, which would amount to a termination of the contract by the Claimant. However, the
DRC emphasized that the player filed no evidence whatsoever in support of this allegation.
Therefore, the DRC concluded that it could only dismiss such reasoning.
70.
In continuation, the Chamber was eager to highlight, once again, that based on the parties’
respective statements and the documentation available on file, it was undisputed that the player
and Partizani signed the new employment agreement.
71.
Therefore, on account of all the above, the Chamber concurred that the player had acted in
breach of the contract without just cause.
72.
Given these circumstances, the Chamber recalled that, according to art. 18 par. 5 of the
Regulations, if a player enters into an employment contract with different clubs for the same
period of time, the provisions of Chapter IV of the Regulations regarding the maintenance of
contractual stability between professionals and clubs shall apply.
73.
The members of the Chamber then referred to item 7. of the “Definitions” section of the
Regulations, which stipulates inter alia that the protected period comprises “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, or two entire seasons or two
years, whichever comes first, following the entry into force of a contract, where such contract is
concluded after the 28th birthday of the professional”. In this regard, the DRC pointed out that
given the facts of the present case, the unjustified breach of contract by the player had obviously
occurred within the applicable protected period.
II. Consequences
74.
Having stated the above, the members of the Chamber turned their attention to the question of
the consequences of such unjustified breach of contract committed by the Respondent 1 during
the protected period.
75.
In continuation, the Chamber turned its attention to art. 17 par. 1 of the Regulations, according
to which the player is liable to pay compensation to Istra. Furthermore, pursuant to the
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unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the
player’s new club, i.e. Partizani, shall be jointly and severally liable for the payment of
compensation. In this respect, the Chamber was eager to point out that the joint liability of the
player’s new club is independent from the question as to whether the new club has committed
an inducement to contractual breach or any other kind of involvement by the new club. This
conclusion is in line with the jurisprudence of the DRC, which has been repeatedly confirmed by
the Court of Arbitration for Sport (CAS). Notwithstanding, the Chamber recalled that in
accordance with art. 17 par. 2 of the Regulations, it should be assumed that, unless otherwise
proven, any club that signs a contract with a professional player who has terminated his/her
contract without just cause has induced the player to terminate such contract.
76.
Moreover and although being confident of the exhaustiveness of the foregoing line of reasoning,
the members of the Chamber, for the sake of completeness, deemed important to address the
issues raised by Partizani, namely that (a) it was not the player’s new club, which was supposedly
Vllaznia and (b) it did not induce the player to breach the contract.
77.
In this regard, the Chamber firstly recalled that it was incumbent on Partizani to be diligent when
hiring a player, as per the DRC’s well-established jurisprudence. As such, the Chamber turned
the evidence produced on file, and noted, firstly, that Partizani admits to have only inquired the
Football Association of Albania on the issuance of the player’s ITC after it had been requested
by FIFA to present its position on the claim at hand, and not before signing the player.
78.
Secondly, the DRC observed that Partizani argued that the annex of the transfer agreement
contained a clause which, in short, (a) established on that Vllaznia was the sole party having the
right to transfer the “player’s card”, and (b) and that Vllaznia would be the sole responsible in
case of any claims raised by any third parties.
79.
Accordingly, the Chamber highlighted, as established above, that the contract was valid and
binding on the parties thereto, irrespective of ancillary questions such as the player’s registration.
Moreover, the DRC referred to the principles of inter partes and erga omnes, and was adamant
that the transfer agreement, to which the Claimant is not a party to, cannot have its terms
enforced against it.
80.
Furthermore, the Chamber noted that the contents of such clause, as inserted in the annex to
the transfer agreement, demonstrate that Partizani knew, at least to some extent, that it could
bear consequences for hiring the player, therefore contractually, and privately, obtaining a
particular form of a warranty against such consequences from both the player and Vllaznia.
81.
Lastly, the DRC considered the argument by Partizani that the player continued to be registered
with Vllaznia after leaving the Claimant, and once again firmly stressed that the issue of the
registration of a player refers merely to an accessory condition to the employment relation,
which, as outlined before, has no impact on the validity of a contact. In other words, the
Chamber empashized, apart from the fact that there is no evidence on file that the player played
for Vllaznia after 2 July 2019, if Vllaznia/the Claimant did not take the steps to properly register
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the player, that does not change the fact that he signed two employment contracts with two
different clubs at the same time.
82.
For the sake of completeness, the Chamber outlined that, on a hypothetical basis, if Vllaznia
bears any responsibility regarding the deeds that took place, such responsibility arises from the
transfer agreement executed with Partizani, while, in turn, Partizani’s liability regards the new
employment agreement executed with the player.
83.
In conclusion, the Chamber affirmed its position that Partizani is undoubtedly the player’s new
club in the sense of art. 17 par. 2 of the Regulations.
84.
In continuation, the members of the Chamber 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.
85.
In application of the relevant provision, the Chamber held that it first of all had to clarify as to
whether the pertinent employment contract contains a provision by which the parties had
beforehand agreed upon an amount of compensation payable by either contractual party in the
event of breach of contract. Upon careful examination of said contract, the members of the
Chamber assured themselves that this was not the case in the matter at stake.
86.
The Chamber further recalled that the Claimant had claimed compensation in the amount of
USD 220,000, broken down as follows:
-
EUR 150,000 in amount that would have been paid to the player;
EUR 20,000 in amount paid for the release of the player;
EUR 50,000 for breach of contract during the protected period
87.
In the calculation of the amount of compensation due by the player, the Chamber firstly turned
its attention to the remuneration and other benefits due to the player under the existing contract
and/or any new contract(s), a criterion that was considered by the Chamber to be essential. The
members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1
of the Regulations allows the Chamber to take into account both the existing contract and any
new contract(s) in the calculation of the amount of compensation.
88.
According to the documentation provided by the parties, it appears that in accordance with the
contract, which was to run until 15 June 2021, the player was to receive a total remuneration of
EUR 142,500. This amount includes the remainder of the player’s salaries of between September
2018 and June 2019, as well as the player’s remuneration for the seasons 2019/2020 and
2020/2021.
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89.
On the other hand, the value of the new employment agreement, concluded between the player
and Partizani, appears to amount to EUR 23,800.
90.
In view of all of the above, the Chamber concluded that bearing in mind art. 17 par. 1 of the
Regulations, after having duly taken into account the specificities of the present case, the
compensation considering the player’s both existing contract and any new contract(s) amounts
to EUR 83,150, which is the average between the amounts the player is entitled to both under
the contract and new employment agreement, a sum the Chamber found to be fair and
proportionate.
91.
The members of the Chamber then turned to the essential criterion relating to the fees and
expenses paid by Istra for the acquisition of the player’s services insofar as these have not yet
been amortised over the term of the relevant contract.
92.
The Chamber recalled that Istra argued that Alavés paid on its behalf a transfer compensation of
EUR 20,000. However, the Chamber observed that the Claimant has produced no
documentation in support of this allegation. What is more, the DRC was adamant that, in any
event, such monies were paid, if at all, by Alavés, and not by the Claimant itself. As such, the
DRC decided that the amount of EUR 20,000 as fees and/or expenses incurred by Istra cannot
be taken into consideration.
93.
On account of all of the above-mentioned considerations and the specificities of the case at
hand, the Chamber decided that the player must pay the amount of EUR 83,150 to Istra as
compensation for breach of contract. Furthermore, Partizani is jointly and severally liable for the
payment of the relevant compensation.
III. Sporting sanctions
94.
In continuation, the Chamber focused its attention on the further consequences of the breach
of contract in question and, in this respect, it addressed the question of sporting sanctions
against the player 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.
95.
In this respect, 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, or two entire seasons or two years,
whichever comes first, following the entry into force of a contract, where such contract is
concluded after the 28th birthday of the professional”. In this regard, the DRC pointed out that
independent of the player’s age, the breach occurred before the contract had run for 2 entire
seasons or 2 years, entailing that the unilateral termination of the contract occurred within the
protected period.
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96.
With regard to art. 17 par. 3 of the Regulations, the Chamber emphasised that a suspension of
four months on a player’s eligibility to participate in official matches is the minimum sporting
sanction that can be imposed for breach of contract during the protected period. This sanction,
according to the explicit wording of the relevant provision, can be extended in case of
aggravating circumstances. In other words, the Regulations intend to guarantee a restriction on
the player’s eligibility of four months as the minimum sanction. Therefore, the relevant provision
does not provide for a possibility to the deciding body to reduce the sanction under the fixed
minimum duration in case of mitigating circumstances.
97.
Consequently, taking into account the circumstances surrounding the present matter, 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 official matches.
98.
Finally, the Chamber turned its attention to the question of whether, in view of art. 17 par. 4 of
the Regulations, the player’s new club, i.e. Partizani, must be considered to have induced the
player to unilaterally terminate his contract with the Claimant without just cause during the
protected period, and therefore shall be banned from registering any new players, either
nationally or internationally, for two entire and consecutive registration periods.
99.
In this respect, the Chamber recalled that, in accordance with art. 17 par. 4 of the Regulations,
it shall be presumed, unless established to the contrary, that any club signing a professional
player who has terminated his previous contract without just cause has induced that professional
to commit a breach. Consequently, the Chamber pointed out that the party that is presumed to
have induced the player to commit a breach carries the burden of proof to demonstrate the
contrary.
100. In light of the aforementioned and the evidence of file, and in particular: (a) the admission by
Partizani that it was interest in the player’s services before he had joined the Claimant, and (b)
the lack of diligence by Partiani in connection with signing the player, the DRC had no option
other than to conclude that Partizani had not been able to reverse the presumption contained in
art. 17 par. 4 of the Regulations. Accordingly, the Chamber decided that Partizani had induced
the player to unilaterally terminate his employment contract with the Claimant.
101. In view of the above, the Chamber decided that in accordance with art. 17 par. 4 of the
Regulations, Partizani shall be banned from registering any new players, either nationally or
internationally, for the two entire and consecutive registration periods following the notification
of the present decision. The club shall be able to register new players, either nationally or
internationally, only as of the next registration period following the complete serving of the
relevant sporting sanction. In particular, it may not make use of the exception and the provisional
measures stipulated in art. 6 par. 1 of the Regulations in order to register players at an earlier
stage.
102. In accordance with the Circular no. 1686 of 8 August 2019, art. 24bis of the Regulations does
not apply to decisions whereby sporting sanctions (registration ban or restriction to play in official
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matches) are imposed on the basis of art. 17 of the Regulations, the execution of which will still
continue to be carried out by the FIFA Disciplinary Committee.
IV. Conclusion
103. As a result of the aforementioned considerations, the Chamber decided to partially accept the
claim of Istra and to order the player and Partizani to, jointly and severally, pay to Istra EUR
83,150 as compensation for breach of contract.
104. A restriction of four months on his eligibility to play in official matches is imposed on the
Respondent 1, Erald Cinari. This sanction applies with immediate effect as of the date of
notification of the present decision. The sporting sanctions shall remain suspended in the period
between the last official match of the season and the first official match of the next season, in
both cases including national cups and international championships for clubs.
105. The Respondent 2, FK Partizani, shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration periods
following the notification of the present decision.
106. The Chamber concluded its deliberations in the present matter by establishing that the claim of
Istra is partially accepted, and rejecting any other requests for relief of any of the parties.
V. Costs
107. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance of
contractual stability as well as international employment related disputes between a club and a
player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
108. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4
of the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, NK ISTRA 1961, is partially accepted.
2.
The Respondent 1, ERALD CINARI, has to pay to the Claimant within 30 days as from the date
of notification of this decision compensation for breach of contract in the amount of EUR 83,150.
3.
The Respondent 2, FK PARTIZANI, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent 1 and the Respondent 2, immediately and
directly, preferably to the e-mail address as indicated on the cover letter of the present decision,
of the relevant bank account to which the Respondent 1 and the Respondent 2 must pay the
amount mentioned under point IV.2. above.
6.
The Respondent 1 and the Respondent 2 shall provide evidence of payment of the due amount
in accordance with point IV.2. to FIFA to the e-mail address [email protected], duly translated into
one of the official FIFA languages (English, French, German, Spanish).
7.
If the aforementioned sum is not paid within the above-mentioned time limit, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a
formal decision.
8.
A restriction of four months on his eligibility to play in official matches is imposed on the
Respondent 1, ERALD CINARI. This sanction applies with immediate effect as of the date of
notification of the present decision. The sporting sanctions shall remain suspended in the period
between the last official match of the season and the first official match of the next season, in
both cases including national cups and international championships for clubs.
9.
The Respondent 2, FK PARTIZANI, shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration periods following
the notification of the present decision.
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10. No procedural costs are imposed on the parties.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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