F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 28 June 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Essa M. Saleh Al-Housani (UAE), member on the claim presented by the player, Player W, from country B as Claimant/Counter-Respondent against the club, Club Y, from country C as Respondent/Counter-Claimant and the club, Club A, from country B as Intervening Party regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 28 June 2013, in the following composition: Geoff Thompson (England), Chairman Jon Newman (USA), member Essa M. Saleh Al-Housani (UAE), member on the claim presented by the player, Player W, from country B as Claimant/Counter-Respondent against the club, Club Y, from country C as Respondent/Counter-Claimant and the club, Club A, from country B as Intervening Party regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 27 January 2011, Player W, from country B (hereinafter: player or Claimant/Counter-Respondent) and the Club Y, from country C (hereinafter: club or Respondent/Counter-Claimant), signed an employment contract valid as of 28 January 2011 until 31 December 2011 (hereinafter: contract). 2. In accordance with the contract, the player was entitled to receive, inter alia, salaries in the total amount of USD 400,000 (USD 36,363 per month) for the whole duration of the contract as well as bonuses and other benefits as follows: - `League bonus according to match appearance’ (bonus per match won) USD 3,000 - `League bonus according to match appearance’ (bonus per draw match) USD 1,000 - Economy air ticket (three round trip tickets) - Rental of a standard apartment 3. Clause 12 of the contract stipulates that the contract will be effective upon signature on the condition that the player meets certain requirements such as ``gaining the certificate of international transfer of football player from one club to another that has been proved by the country C Football Association’’. Otherwise the club ``has the right to terminate the contract at any time’’ and the player must pay ``USD 50,000 as compensation’’. 4. Clause 25 of the contract stipulates that the player ``agreed commitments and in particular: as a result of registration of foreign players quota restrictions or other causes B [the player] can not be registered, this contract null and void’’. 5. On 27 April 2011, the player informed the club of his intention to comply with his contractual duties and he requested from the club its position regarding its failure to comply with its financial and sportive obligations and indicated his intention to take further action in case of failure to do so. 6. The letter having remained unanswered, on 13 May 2011, the player lodged a claim against the club in front of FIFA requesting that the club be ordered to pay compensation for breach of contract, which was detailed as follows: - USD 400,000 relating to salaries; - USD 7,050 or other amount the Chamber deems fair ex aequo et bono, corresponding to round trip air tickets (country C - country B); - USD 90,000 relating to winning match bonuses (30 matches in the country C National Championship x USD 3,000); - USD 218,181 relating to the specificity of sport, corresponding to a sum equivalent to six months of salary; - The costs of a standard apartment in Club Y. 7. The player also requested to be awarded 5% interest p.a. over the total amount due as compensation, as from the date on which the breach of the contract occurred. Furthermore, the player requested that sporting sanctions be imposed on the club and that the club be ordered to pay legal fees. 8. The player explained that, upon signature of the contract, the club informed him that his services were no longer required and released him without any valid reason or just cause. Furthermore, the player sustained that the club failed to make the payment of the remuneration due under the contract as well as to provide any support during the four months that he remained in country C. 9. In its response to the player’s claim, the club maintained that the validity of the contract was subject to two conditions. Firstly, the club and Club A would have had to sign a loan agreement, which, according to the club, was never signed. Secondly, Club A would have had to send the player’s International Transfer Certificate (hereinafter: ITC) to country C, which apparently never transpired. Hence, according to the club, the employment relation between the parties was not effectively initiated. 10. As regards the ineffectiveness of the contract, the club also referred to provision 25 of the contract, which stipulates that if as a consequence of the foreign players’ quota restrictions or other causes the player cannot be registered, the contract is null and void. Thus, the club claimed not to have any obligation to pay compensation to the player. 11. Subsequently, the club lodged a counterclaim against the player, requesting compensation in the amount of USD 50,000 for damages caused to the club in accordance with clause 12 of the contract. 12. The player, for his part, contested the club’s allegations regarding the validity of the contract. In this respect, the player stated that the contract was duly signed by the parties and contained all the essential elements of an employment contract, thus, it was valid and binding. 13. In continuation, the player addressed the club’s allegations in relation to the issuance of the ITC being a condition for the validity of the contract. In this regard, the player asserted that such administrative formality constitutes an obligation for the new club and the relevant association and cannot invalidate or jeopardize the labour rights of a party acting in bona fide. In this respect, the player maintained that any club intending to sign a professional player is expected to exercise due diligence, 14. undertake all necessary research and take all appropriate administrative steps before concluding an employment contract with the player. 15. Furthermore, in order to contest the club’s allegation related to the absence of the parties’ signatures in the agreement between the club and Club A over the loan of the player (hereinafter: loan agreement), the player submitted a copy of the loan agreement duly signed and stamped by both clubs. In addition, the player submitted a letter, dated 22 March 2011, sent by the president of the country C club to the president of Club A informing that the club had decided to release the player due to ``technical and attitude condition’’. 16. Moreover, in respect of the liability for the breach of the contract and as to the sportive and financial damages suffered by the parties, the player asserted that the harm he endured was more severe than the club would have suffered had the breach been caused by him. 17. Finally, as to the compensation in the total amount of USD 50,000 requested by the club, the player maintained that the club fell in contradiction when claiming compensation on the basis of a clause contained in a contract which it alleges to be ineffective. According to the player, this constitutes clear evidence that the contract was valid and binding and that the club is to be held liable for the breach of the contract. 18. In its final position, the club contested the player’s allegations related to the signature of the loan agreement by both clubs. In this respect, the club questioned the authenticity of both the signature and the stamp and stated that, if necessary, it would perform a polygraph examination in order to verify their authenticity as well as taking further action in the event that the evidence was forged. 19. Moreover, the club referred to provisions 12 and 25 of the contract and reiterated its position with regard to the amount of USD 50,000 claimed as compensation as well as with regard to the validity of the contract. 20. In his final position, the player insisted on his previous allegations and stressed that, in the event that clauses 12 and 25 were declared null and void, the contract would still be valid and should produce all legal effects. 21. According to the employment contract with his new club, Club A, valid as of 20 January 2011 until 2 February 2013, the player was entitled to receive a monthly salary of currency of country B 40,000. Furthermore, on 20 June 2011 Club A and Club F signed an agreement over the loan of the player to the latter, which was also signed by the player, as from 21 June 2011 until 31 December 2011, according to which the player was also entitled to receive a monthly salary of currency of country B 40,000. 22. Having been invited by FIFA to submit its comments on the matter, the intervening party, Club A, admitted to have concluded a loan agreement with the club on 27 January 2011, which was valid and binding. Moreover, Club A referred to art. 1.2 of the loan agreement, in accordance with which, failing to receive from the country C club payment of the agreed loan compensation in the amount of USD 150,000 on or before 20 February 2011, Club A would not be ``obliged to react affirmatively to the consult made by the country C Football Association requesting the issuance of the player’s International Transfer Certificate (ITC)’’. According to Club A, the club did not pay the compensation for the player’s loan to the club, hence, the player’s ITC was never issued. 23. In addition, Club A sustained that, in March 2011, it was informed by the club that ``due to the Player’s technical and attitude condition, they decided not to keep him in the team’’ and maintained that a few days after receipt of that letter, the player went back to country B. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 13 May 2011. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the Procedural Rules). 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 par. 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country B player and a country C club. 3. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 24 June 2013 by means of which the parties were informed of the composition of the Chamber, the member Mr M and the member Mr G refrained from participating in the deliberations in the case at hand, due to the fact that the member Mr M has the same nationality as the Claimant and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Mr T refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations. 4. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (editions 2012 and 2010), and considering that the present claim was lodged on 13 May 2011, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 5. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case as well as the documents contained in the file. 6. In this respect, the Chamber recalled that the parties had signed an employment contract valid as from 28 January 2011 until 31 December 2011, in accordance with which the Claimant/Counter-Respondent was entitled to receive, inter alia, salaries in the total amount of USD 400,000. According to the Claimant/Counter-Respondent the club is to be held liable for breach of contract and payment of compensation for breach of contract, whereas the Respondent/Counter-Claimant mainly held that no valid employment contract had been entered into between the parties. 7. In continuation, the members of the Chamber highlighted that the fundamental disagreement between the parties of the present dispute and, thus, the central issue in the matter at hand is whether the employment contract signed between the parties constitutes a valid and binding contract between the parties. 8. The Chamber recalled that according to provision 12 of the contract, the contract would be effective upon signature on the condition that the player would meet the requirement, inter alia, of ``gaining the certificate of international transfer of football player from one club to another that has been proved by the country C Football Association’’. Said clause further stipulates that, otherwise, the Respondent/Counter-Claimant ``has the right to terminate the contract at any time’’ and the Claimant/Counter-Respondent must pay ``USD 50,000 as compensation’’. 9. The members of the Chamber noted that the Respondent/Counter-Claimant sustained that the employment contract between the parties never entered into force, since the validity of the contract was subject to two conditions, which, according to the Respondent/Counter-Claimant were not met. In this respect, the members of the Chamber duly noted that, according to the Respondent/Counter- Claimant, for the contract to be valid, a loan agreement would have had to be signed between the Respondent/Counter-Claimant and Club A and the latter club would have had to send the relevant ITC. As regards the alleged invalidity of the contract, apart from the aforementioned clause 12, the Respondent/Counter- Claimant also invoked provision 25 of the contract, which stipulates that if as a consequence of the foreign player’s quota restrictions or other causes the player cannot be registered, the contract is null and void. 10. The DRC then turned its attention to the arguments of the Claimant/Counter- Respondent and acknowledged that, according to the latter, the contract was duly signed by the parties and contained all essential elements of an employment contract and was thus valid and binding. Moreover, the Claimant/Counter-Respondent maintained that the issuance of the ITC is an administrative formality which constitutes an obligation for the new club and the relevant association and cannot invalidate or jeopardize the labour rights of a party acting in bona fide. It was duly noted that according to the Claimant/Counter-Respondent, as opposed to the position of the Respondent/Counter-Claimant, the Respondent/Counter-Claimant and Club M did, in fact, sign a loan agreement, a duly signed copy of which was presented. 11. In this regard, bearing in mind art. 18 par. 4 of the Regulations, the Chamber considered relevant to recall its jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which are of the sole responsibility of a club and on which a player has no influence. Bearing in mind that according to Annexe 3 of the Regulations an ITC request depends on the new club’s application to the new association to register a professional, the club is actually in the position to prevent the occurrence of the condition precedent of receipt of an ITC by wilfully choosing not to proceed with the application for an ITC request. 12. In view of the foregoing, and in line with the Chamber’s constant jurisprudence in this regard, the Chamber concluded that the Respondent/Counter-Claimant’s arguments related to arts. 12 and 25 of the contract could not be upheld by the DRC. 13. Subsequently, the Chamber focused its attention on the second argument of the Respondent/Counter-Claimant, according to which the contract cannot be considered as valid and binding as the Respondent/Counter-Claimant and Club A would have had to sign a loan agreement, which allegedly never transpired. 14. In this regard, the Chamber noted that the Claimant/Counter-Respondent had submitted a copy of the loan agreement concluded between the Respondent/Counter-Claimant and Club A and, after a careful examination of the loan agreement, the Chamber concluded that it did, in fact, bear the signature of both parties. Furthermore, Club A, for its part, had confirmed that it had concluded a valid and binding loan agreement with the Respondent/Counter-Claimant. 15. Therefore, and bearing in mind that the employment contract does, in fact, not include any clause stipulating the condition precedent of a valid loan agreement, the Chamber deemed that it did not need to analyse the question as to whether any such alleged condition precedent in the employment contract can be considered valid. 16. In addition, taking into consideration the above, the Chamber rejected the arguments put forward by the Respondent/Counter-Claimant relating to the loan agreement. 17. On account of all of the above, the members of the Chamber established that, on 27 January 2011, the parties signed a valid and binding employment contract containing all the essentialia negotii. 18. Having established that a valid and legally binding employment contract had been in force between the Claimant/Counter-Respondent and the Respondent/Counter- Claimant, the Chamber went on to analyse as to whether such contract had been breached and, in the affirmative, which party is to be held liable for breach of contract. 19. In this context, the Chamber was eager to emphasize that, the Respondent/Counter- Claimant did not contest the allegations of the Claimant/Counter-Respondent that it had not performed any of its obligations under the employment contract and that, in fact, it merely disputed the legal validity of such contract. 20. On account of the above circumstances, the Chamber established that the Respondent/Counter-Claimant had obviously no longer been interested in the Claimant/Counter-Respondent’s services by sustaining that no valid employment contract existed between the parties. Consequently, the pertinent employment contract was never executed due to the refusal of the Respondent/Counter-Claimant to accept the player’s services without any valid reason. The Chamber concluded that such conduct clearly constitutes a breach of contract and, accordingly, decided that the Respondent/Counter-Claimant has produced the premature termination without just cause of the employment contract entered into between the parties. 21. Having established that the Respondent/Counter-Claimant is to be held liable for the early termination of the employment contract without just cause, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant/Counter-Respondent is entitled to receive from the Respondent/Counter- Claimant an amount of money as compensation for breach of contract. 22. In continuation, the Chamber focused 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 Claimant/Counter-Respondent under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 23. 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 means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 24. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from January 2011 until 31 December 2011 and concluded that the Claimant/Counter- Respondent would have received in total USD 400,000 as salaries had the contract been executed until its expiry date. 25. In continuation, the Chamber assessed whether the Claimant/Counter-Respondent had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages. 26. In this respect, the Chamber noted that the Claimant/Counter-Respondent had returned to his former club, Club A, with which club he was under contract until 2 February 2013, which entitled the Claimant/Counter-Respondent to receive a monthly salary of currency of country B 40,000. Moreover, the Chamber acknowledged that, on 20 June 2011, Club A and Club F signed an agreement over the loan of the Claimant/Counter-Respondent to the latter, which was also signed by the Claimant/Counter-Respondent, as from 21 June 2011 until 31 December 2011, according to which the Claimant/Counter-Respondent was also entitled to receive a monthly salary of currency of country B 40,000. 27. As regards the match bonuses included in the employment contract and in the player’s claim for compensation, the Chamber emphasized that due to their variable and performance-related character it could not undoubtedly establish that the Claimant/Counter-Respondent would have been paid such bonuses and, if any, in what proportion. Consequently, the Chamber agreed that it could not take any such bonuses into account while assessing the residual value of the contract. The members, referring to the principle of the burden of proof stipulated in art. 12 par. 3 of the Procedural Rules, also stressed that the Claimant/Counter-Respondent had not submitted any convincing documentary evidence in this respect. 28. The Chamber also considered important to point out that, although the employment contract was fully valid and enforceable, the execution of the contract had never started. 29. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent/Counter- Claimant must pay the amount of USD 50,000 to the Claimant/Counter-Respondent as compensation for breach of contract. 30. Furthermore, taking into account the Claimant/Counter-Respondent’s petition and the constant practice of the Dispute Resolution Chamber, the members of the Chamber decided to award the Claimant/Counter-Respondent interest at the rate of 5% p.a. on the amount of USD 50,000 as of 28 June 2013 until the date of effective payment. 31. In addition, on account of the fact that the Claimant/Counter-Respondent was entitled to receive air tickets from the Respondent/Counter-Claimant on the basis of the employment contract, taking into account the information received from FIFA’s travel office, the Chamber decided that the Respondent/Counter-Claimant must pay to the Claimant/Counter-Respondent the amount of USD 2,500 for the flight to return home. 32. Taking into account all of the above, the DRC decided to partially accept the claim of the Claimant/Counter-Respondent and to entirely reject the Respondent/Counter- Claimant’s request for compensation in the amount of USD 50,000. 33. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant/Counter-Respondent are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant/Counter-Respondent, Player W, is partially accepted. 2. The counterclaim of the Respondent/Counter-Claimant, Club Y, is rejected. 3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 50,000 plus interest at 5% p.a. as of 28 June 2013 until the date of effective payment. 4. The Respondent/Counter-Claimant, Club Y, has to pay to the Claimant/Counter- Respondent the amount of USD 2,500 relating to air tickets within 30 days as from the date of notification of the present decision. 5. In the event that the above-mentioned amounts due to the Claimant/Counter- Respondent are not paid by the Respondent/Counter-Claimant within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and decision. 6. Any further claim lodged by the Claimant/Counter-Respondent is rejected. 7. The Claimant/Counter-Respondent is directed to inform the Respondent/Counter- Claimant 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. ** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Deputy Secretary General Encl.: CAS directives