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 16 November 2012, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Carlos Soto (Chile), member Ivan Gazidis (England), member Mohamed Mecherara (Algeria), member on the claim presented by the club, Club T, from country C as Claimant against the player, Player H, from country C as Respondent 1 and the club, Club D, from country H as Respondent 2 regarding an employment-related dispute

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 16 November 2012, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Carlos Soto (Chile), member Ivan Gazidis (England), member Mohamed Mecherara (Algeria), member on the claim presented by the club, Club T, from country C as Claimant against the player, Player H, from country C as Respondent 1 and the club, Club D, from country H as Respondent 2 regarding an employment-related dispute I. Facts of the case 1. On 6 August 2009, Player H, from country C (hereinafter: the player), and the Club T, from country T (hereinafter: Claimant), signed an employment contract for a period of “two years”, ending at the end of the 2011 sporting season. 2. In accordance with the contract, the player was entitled to receive inter alia a monthly salary of currency of country C 70,000 (approx. EUR 107), a signing-on fee of currency of country C 1,500,000 (approx. EUR 2,287) and the following bonuses: • Home victory: currency of country C 20,000 (approx. EUR 30,50) • Away victory: currency of country C 25,000 (approx. EUR 38) • Home draw: currency of country C 10,000 (approx. EUR 15) • Away draw: currency of country C 12,000 (approx. EUR 18) 3. On 13 December 2010, the club lodged a claim against the player and against Club D, from country H, claiming that on 1 January 2010, the player had breached the contract without just cause and had subsequently signed a contract with Club D. Club T is holding the player and Club D jointly and severally liable for said breach, stressing that the player was contractually bound to Club T for two years, as of 6 August 2009 until 6 August 2011. In this respect, by signing an employment contract with Club D, the player could no longer fulfill his contractual duties with Club T, thus constituting a clear breach of contract without just cause. 4. According to Club T, in January 2010, the player was invited to participate in a test training in Europe and as a result, on 2 January 2010, Club T wrote a letter to the country C Football Federation which read as follows: “Dear Sir, Kindly issue an authorization in favour of Player H to travel to country H to play football. Sir this letter is to be issued to serve only the purpose of acquiring travelling papers from the country H embassy in Lagos”. On 11 January 2010, the country C Football Federation in reply to Club T´s request, authorised the player to travel to country H as to carry out the pertinent “recruitment tests”. 5. In this respect, Club T claims that after his trip abroad, the player never returned to country C as, according to Club T, at the beginning of January 2010, the player apparently signed an employment contract with Club D. 6. In light of the situation, Club T claims that for over four months, they tried to reach an amicable settlement however, no response was ever received. 7. On the basis of the above-mentioned facts, Club T requests the total payment of EUR 197,698.05 as compensation for the alleged breach of contract incurred by the player and the alleged inducement by Club D, indicating that according to a website, the player´s market value is EUR 200,000. In this respect, Club T presented the following breakdown: a. i) The player was entitled to currency of country C 70,000 or EUR 106,71 a month, and as the contract was breached on 1 January 2010, the player until the end of his current contract on 6 August 2011, still had 19 months remaining. currency of country C 70,000 x 19 months = currency of country C 1,330,000 or EUR 2,028.89. ii) Moreover, and in the hypothetical case the player had respected the contract, he would have been entitled to currency of country C 179.000 or EUR 273,06 in bonuses:  6 home victories: 20.000 x 6 = currency of country C 120.000  1 away victory: 25.0000 x 1 = currency of country C 25.000  1 home draw: 10.000 x 1 = currency of country C 10.000  2 away draws: 12.000 x 2 = currency of country C 24.000 In this respect, Club T claims to have saved in expenses the amount of currency of country C 1,509,000 or EUR 2,301.95 (currency of country C 1,330,000 + currency of country C 179,000) or (EUR 2,028.89 + EUR 273,06). b. Furthermore, Club T claims to have no knowledge of the remuneration and other benefits owed to the player under his new contract, thus in the worst scenario, they consider the amount estimated as remuneration as EUR 0,00. On account of the above, and referring to the CAS decision Player E, Club T considers that the compensation should be calculated as follows: Market value + Remuneration and other benefits under the new contract for the remaining contract period of the old contract” - Saved expenses = Compensation EUR 200.000 + EUR 0 - 2,301.95 = EUR 197,698.05 8. Furthermore, Club T is requesting for sporting sanctions to be imposed on both the player and Club D, due to the alleged breach of contract and inducement committed during the protective period. 9. In his reply, the player states he is very surprised by Club T´s claim, asserting he signed a contract with Club T as from 6 August 2009 until 31 December 2009, only in order to give them a helping hand, however with the conditional obligation that as of 1 January 2010, the player would become once again a free agent. Furthermore, the player understands this to be the reason why the president of Club T on 2 January 2010, signed an authorisation for which he was allowed to play in country H. 10. Moreover, the player states that the agreement with Club T´s president was fairly obvious to the country C Football Federation; if not they would have never confirmed him as a free agent to the country H Football Federation nor to Club D. 11. Subsequently, the player considers himself innocent of any wrongdoing and furthermore states that Club T´s claim is only envisaged to receive illegitimate advantage both from him and Club D. As a result, the player requests that the proceeding against him should be dismissed. 12. For its part, Club D also rejects Club T´s allegations of wrongdoing, but confirmed to have concluded a professional contract with the player on the basis that the player had told them he was a free player i.e. out of contract. 13. Moreover, Club D claims to have acted in good faith and in accordance with the rules; they requested the registration of the player via the FIFA Transfer Matching System (TMS), which indicated that the player was out of contract. 14. In this respect, Club D alleges that the country C Football Federation, who at that time had the registration of the player, issued the International Transfer Certificate (ITC) on the basis of the request. 15. Club D claims that no notification was ever received stating that the player was not out of contract. Moreover, Club D claims that if they had known that the player was under contract, they would have never made an attempt to sign him, due to their financial situation as well as to the player’s qualities. 16. It was only in light of the presumption that the player was out of contract that Club D offered the player a contract which was then prematurely terminated on 18 July 2010, as Club D were relegated from the country H first division football championship. Thereafter, the player signed a contract with another country H team, Club J 17. Furthermore, Club D considers that the letter issued by Club T on 2 January 2010 and directed to the country C Football Federation cannot be considered as a trial, but as a clear authorisation to continue his career in country H. 18. Moreover, Club D categorically rejects the claim presented by Club T which states that Club D had been acting in a way which would induce to the breach of contract and therefore would deserve disciplinary punishment. 19. Finally, Club D also disagrees on the estimated transfer value of the player which was based on an internet extract which cannot be considered as official or authentic. In this respect, Club D also points out that the player was subsequently transferred to Club J free of any transfer compensation and, thus, have not benefited from the player in any manner whatsoever. Club D considers that the amount of money received by the player as monthly salary during his spell at Club T cannot be considered as a proportionate salary for someone allegedly worth EUR 200,000 and added that in its view, the player had no value at all. 20. For all the above reasons, Club D refuses Club T´s request underlining that its claim is neither justified in its legal basis nor in its amounts. 21. Finally, FIFA was provided with an employment contract dated 21 December 2009, signed between the player and Club D, valid as from 1 January 2010 until 30 June 2012, with a gross monthly salary of currency of country H 90,000 (approx. EUR 317). In addition, the player stated that on 19 July 2010, he subsequently signed an employment contract with Club J, valid as from the date of signature until 30 June 2013, with a gross monthly salary of currency of country H 145,000 (approx. EUR 511). 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 December 2010. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the Procedural Rules). 2. Subsequently, the members of the Dispute Resolution Chamber 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. a) of the Regulations on the Status and Transfer of Players (edition 2010) the Chamber is competent to deal with the matter at stake. 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2010), and considering that the present claim was lodged on 13 December 2010, the 2010 edition of said regulations (hereinafter: Regulations) is applicable as to the substance of the matter at hand. 4. In continuation, and entering into the substance of the matter, the members of the Chamber firstly acknowledged that, on 6 August 2009, the Claimant and the player concluded an employment contract valid for a period of two years, ending at the end of the 2011 sporting season, i.e. as from 6 August 2009 until 6 August 2011. However, at the same time the Chamber noted that the player deemed that he had only concluded a contract with the Claimant until 31 December 2009. The members of the Chamber further acknowledged that the Claimant claimed that the player, after his authorised trip abroad, unilaterally breached the employment contract by failing to return back to country C and subsequently, signing in January 2010 an employment contract with Club D. On such basis, the Claimant deemed that the player shall be sentenced to pay compensation for breach of contract to the Claimant in the amount of EUR 197,698.05, which, according to the Claimant, corresponds to the player´s market value and the club´s saved expenses. The members of the Chamber further acknowledged that the Claimant submitted that the player’s new club, i.e. Club D, shall be jointly liable for the payment of the compensation for breach of contract to be paid by the player to the Claimant. 5. In continuation, the Chamber duly took note of the player’s reply to the claim lodged against him and, in particular, that the player denied having left the Claimant without having been authorised to do so. In this respect, the Chamber noted the player’s assertion in accordance with which he claims to have had an agreement with the Claimant´s president by means of which his contract was to last until 31 December 2009 only. The sole reason behind the signing of the contract was apparently to provide the club with a helping hand but with the conditional obligation of becoming a free agent as of 1 January 2010. Reason for which, on 2 January 2010, he was provided with an authorisation to travel to country H. The existence of the so-called agreement is clearly typified, according to the player, by the manner in which the country C Football Federation acted, implying that the country C Football Federation would have never declared him a free agent to the country H Football Federation nor to Club D, if indeed this agreement was not bona fide. 6. In view of the above-mentioned considerations, the Chamber held that the main issue it first and foremost had to deal with, was to determine whether the player’s definite departure from the Claimant, which was not denied by the player, was authorised or not by the Claimant. Indeed, and based on the player’s own statement, the Chamber established that the player acknowledged having left the Claimant on or about 1 January 2010, but only challenged the factual circumstances under which said departure took place. 7. In this context, the Chamber deemed fit to recall the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. 8. Applying the aforementioned legal principle to the situation at hand, the Chamber reverted to the facts at the origin of the matter at hand and carefully analysed the documentation submitted by the parties. 9. After having proceeded to such analysis, the members of the Chamber unanimously reached the conclusion that the player had not submitted any evidence establishing that the Claimant and himself had signed a contract until 31 December 2009 only, nor that he had been granted authorisation to definitely leave the club. In view of the evidence on file, the Chamber concluded that the contract was valid until the end of the 2011 sporting season and that the authorisation letter issued by the country C Football Federation, albeit vaguely drafted, only authorised the player to travel abroad for “recruitments tests”. As a result thereof, the Chamber deemed that there was no clear authorisation from the Claimant, declaring the player free to leave and sign for a new club. 10. In continuation, the Chamber focussed its attention on the player’s argumentation, in accordance with which his successful registration in country H necessarily required the issuance of the relevant ITC by the country C Football Federation on the one hand, as well as the Claimant’s authorisation for the player’s registration with another club on the other hand. 11. In this regard, the Chamber deemed it fit to outline that, as a general rule, the issuance of an ITC between associations does not constitute or imply a waiver of a player’s club of origin of any employment-related claims against a player whose transfer is materialised via such ITC, nor, potentially, against the new club with which a player is registered on the basis of such an ITC. 12. In view of the above, the Chamber underlined that by either accepting the issuance of the ITC, or, as the case may be, by not having opposed itself to the issuance of the relevant ITC in January 2010 in favour of the country H Football Federation, the Claimant did not waive its right to claim against the player and his new club, nor did the Claimant approve the player’s absence as of January 2010. 13. In view of the aforementioned, and based on the documentation available on file, the Chamber considered that the player’s argumentation related to his registration in country H with another club could not be followed. Hence, the Chamber found that, at this stage of its analysis, it was still to be considered that the player had not brought any documentary evidence showing that the Claimant had agreed to the player’s definite departure from the club in January 2010. 14. Having said this, the Chamber held that the player had failed to prove that the Claimant had authorised him to definitely leave the club and subsequently sign an employment contract with a new club. As a consequence thereof, the Chamber concluded that the player had breached the employment contract without just cause in January 2010, by leaving the Claimant and by signing a new contract with Club D. 15. Consequently, having determined which party terminated the employment contract without just cause, the Dispute Resolution Chamber focused on the potential financial and/or sporting consequences for the player of said termination of contract without just cause. The Chamber decided that, by unilaterally and prematurely terminating the employment contract with the Claimant without just cause, in accordance with article 17 par. 1 of the Regulations, the player is liable to pay compensation to the Claimant. 16. In continuation, 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 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, 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 the protected period. 17. 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 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. 18. As a consequence, the members of the Chamber determined that the amount of compensation for breach of contract in the present matter had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. Furthermore, the Chamber highlighted that each request for compensation for breach of contract has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter, as well as the Chamber’s specific knowledge of the world of football and its experience gained throughout the years. 19. Having said this, the Chamber turned its attention to the remuneration and other benefits due to the player under the existing contract and/or the new contract. The members of the Chamber deemed it important to emphasise that the wording of article 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 thus enabling the Chamber to gather indications as to the economic value attributed to a player by both his former and his new club(s). 20. In this respect, the Chamber noted that the monthly remuneration of the player with the Claimant amounted to currency of country C 70,000, i.e. EUR 107. Equally, the Chamber recalled that the breach of contract in the case at hand occurred at the time when the relevant employment contract was still to run for more than nineteen months, i.e. as from 1 January 2010 until 6 August 2011, equalling the value of currency of country C 1,330,000 i.e. EUR 2,033 (i.e. the contractual remuneration falling due as of January 2010 until the end of July 2011). 21. On the other hand, the Chamber noted that subsequent to the moment in time when the breach of contract occurred starting as from January 2010 until end of July 2011, the player had signed two new employment contracts. In accordance with the first new employment contract signed with Club D, the player was entitled to a monthly salary of currency of country H 90,000 i.e. EUR 317. In accordance with the second new employment contract signed with Club J, the player was entitled to a monthly salary of currency of country H 145,000 i.e. EUR 511. Thus, during the period of time overlapping the remaining duration of the employment contract signed with the Claimant, the player earned, at the most, the total amount of EUR 8,351 (7 monthly salaries of EUR 317 and 12 monthly salaries of EUR 511). 22. Having established the above, the Chamber acknowledged that the Claimant had provided an internet extract which indicated that the player’s market value was EUR 200,000. The Chamber however decided that, for obvious reasons, a simple extract of a random internet website cannot be considered as convincing documentary evidence to be used as the basis on which a player’s market value is established. Hence, the DRC came to the conclusion that, in the present matter, the salaries of the player were the only indication as to the economic value attributed to the player and, thus, as to the potential market value of the player. 23. In this respect and notwithstanding the above, the members of the Chamber however, after considering all the facts of the case, deemed it important to recall that, although it had considered that the player was to be held responsible for having terminated the contract without just cause, one should not omit the fact that the Claimant’s behaviour had not been without its flaws either, a fact that should be taken into account when establishing the amount of compensation payable for breach of contract without just cause. 24. First of all, the Chamber noted that as of the date of the apparent breach of contract by the player, in January 2010, until the date in which the claim was effectively filed in front of FIFA, on 13 December 2010, nearly one full year had elapsed. Having said this, and without entering into a conceptual debate, the members of the Chamber nonetheless, given the amount of time that had elapsed and in particular, acknowledging the fact that the club had never requested for the player´s return, remained fairly sceptical on the issue of whether the Claimant had in fact endured the amount of damage claimed as per the player´s unilateral breach of contract without just cause. 25. Another mitigating factor borne in mind by the Chamber was the ambiguity of the letters issued by the Claimant on 2 January 2010 and by the country C Football Federation on 11 January 2010. On 2 January 2010, the Claimant contacted the country C Football Federation requesting for an authorisation letter allowing the player “to travel to country H to play football”. Subsequently, and in reply to the Claimant´s request, the country C Football Federation provided the player with a letter by means of which the latter was allowed to travel to country H to carry out the pertinent “recruitment tests”. Even though, as previously stated, the Chamber rejected the player´s claim regarding the aforementioned letter to be a definite authorisation to travel to country H and sign an employment contract with a new club, the members of the Chamber albeit, deemed that the manner in which said authorisation letter was drafted, could have easily led to confusion and misunderstanding, as may have been the case in the matter at hand. 26. The Chamber also highlighted the fact that the Claimant never objected to the issuance of the ITC, which is another circumstance which should be taken into consideration when calculating the amount of compensation due as breach of contract in the present matter. 27. On account of all of the above-mentioned considerations, attenuating circumstances and the specificities of the case at hand, the Chamber decided that the player must pay the amount of EUR 1,300 to the Claimant as compensation for breach of contract, which was considered a fair and adequate amount of compensation in the present matter. Furthermore, in accordance with the unambiguous content of article 17 par. 2 of the Regulations, the Chamber established that the player’s new club, i.e Club D, shall be jointly and severally liable for the payment of compensation. 28. In this respect and in relation to the arguments put forward by Club D, the Chamber was eager to point out that the joint liability of a player’s new club is independent from the question as to whether this new club has committed an inducement to contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber that was repeatedly confirmed by the Court of Arbitration for Sport (CAS). Hence, the Chamber decided that Club D is jointly and severally liable for the payment of the relevant compensation. 29. The Chamber concluded its deliberation by rejecting any further claim lodged by the Claimant. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Club T, is partially accepted. 2. The Respondent 1, Player H, has to pay to the Claimant compensation for breach of contract amounting to EUR 1,300 within 30 days as from the date of notification of this decision. 3. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. The Respondent 2, Club D, is jointly and severally liable for the payment of the aforementioned amount. 5. Any further claim lodged by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent 1 and the Respondent 2 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