F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 7 February 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member John Bramhall (England), member Santiago Nebot (Spain), member on the claim presented by the club, Club A, from country B as Claimant against the player, Player C, from country B as First Respondent and the club, Club D, from country E as Second Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 7 February 2014, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member John Bramhall (England), member Santiago Nebot (Spain), member on the claim presented by the club, Club A, from country B as Claimant against the player, Player C, from country B as First Respondent and the club, Club D, from country E as Second Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 31 January 2009, the club from country B, Club A (hereinafter: the Claimant) and the player from country B, Player C (hereinafter: the player or the First Respondent), born on 16 April 1986, signed an employment contract of the Football Association from country B valid from 1 February 2009 until 31 January 2010 (hereinafter: the 2009 contract), providing for a total basic remuneration of 28,500,000. 2. Also on 31 January 2009, the Claimant and the First Respondent concluded a “Supplemental Contract for Multiple Year Player Contract” (hereinafter: the supplemental contract) valid from 1 February 2009 until 31 January 2011. 3. Clause 2 of the supplemental contract provided, inter alia, for a “basic compensation” of 28,500,000 for the period between 1 February 2009 and 31 January 2010. In the following year, the player was entitled to receive a “basic compensation” of 28,500,000 “or larger amount”. 4. Pursuant to clause 3 of the supplemental contract, the parties agreed that any club wishing to hire the player during the course of the contract shall pay a “transfer fee or compensation money” as follows: If the new club is a club outside country B: Rental: EUR 300,000 Permanent: EUR 1,000,000 If the new club is a domestic club: Rental: 35,000,000 Permanent: 350,000,000 5. On 23 January 2010, the First Respondent and the Claimant signed a second employment contract of the Football Association from country B valid from 1 February 2010 until 31 January 2011 (hereinafter: the 2010 contract), providing for a total basic remuneration of 38,500,000. 6. On 8 February 2011, the Claimant lodged a claim against the club from country E, Club D (hereinafter: the Second Respondent). On 24 February 2011, it provided FIFA with an amended claim which was also directed against the player requesting that the First and Second Respondents shall be jointly and severally liable to pay the amount of EUR 1,000,000 based on clause 3 of the supplemental contract plus 6% interest p.a. as from 31 January 2011 until the date of full payment. Furthermore, the Claimant claimed that procedural costs shall be borne by the Respondents. 7. In this respect, the Claimant explained that the First Respondent had entered into more than one contract covering the same period and had terminated their contractual relationship without just cause and consequently, would be liable to pay compensation for breach of contract. 8. With regard to the Second Respondent, the Claimant stated that the latter had violated art. 18 par. 3 of the FIFA Regulations on the Status and Transfer of Players (hereinafter: the Regulations) by entering into negotiations with the First Respondent without informing his current club, i.e. the Claimant. Moreover, according to the Claimant, the Second Respondent had caused the First Respondent to enter into more than one contract covering the same period and to terminate his current contract without just cause. Therefore, the Second Respondent shall be jointly and severally liable for the compensation to be paid by the First Respondent for breach of contract. 9. Regarding the facts of the case, the Claimant first of all stated that, on 28 November 2010, various media reported the Second Respondent’s interest in engaging the First Respondent; however, the club alleged that it had never been contacted by the club from country E. 10. On 4 December 2010, the Claimant sent a letter to the agent of the First Respondent offering a renewal of the contract. In particular, it proposed a contract validation from 1 February 2011 until 31 January 2012 for an annual salary of 43,500,000. In this regard, the club highlighted that, according to “art. 1-8(3) of Football Association from country B’s Regulations on the Contract, Registration and Transfer of Professional Soccer Players” (hereinafter: Regulations of the Football Association from country B), “if the player does not provide the answer to the notice regarding the renewal by [31 December, in case the contract expires between 1 and 31 January], the player is deemed to have agreed to the renewal of contract”. According to the Claimant, since neither the First Respondent nor his agent responded to the offer by 31 December 2010, the First Respondent is deemed to have agreed to the extension of the contract for the season 2011. 11. On 20 December 2010, the First Respondent’s agent allegedly informed the Claimant that Club D had offered a contract to the player. On or around 21 December 2010, the Player Called the First Respondent’s agent to ask for an update regarding the contract extension. Afterwards, the First Respondent’s agent allegedly became unreachable until 18 January 2011. 12. On 18 January 2011, the First Respondent’s agent finally contacted the Claimant in order to inform it that the First Respondent will play for an overseas club. The Claimant affirmed never to have been informed by the Second Respondent that it was entering into negotiations with the First Respondent. 13. Later on, on 31 January 2011, the Football Association from country B informed the Claimant that the First Respondent had concluded an employment contract with the Second Respondent on the same day; however, the latter announced in the media having signed the contract on 30 January 2011. Thereafter, the Football Association from country B, the Claimant, the country E League and the Second Respondent exchanged various e-mails. In this respect, the Claimant stated that at the time the First Respondent entered into an employment contract with the Second Respondent commencing on 31 January 2011, he was still under contract with the club from country B, i.e. the supplement contract, the 2010 contract and the renewal of the contract. Consequently, the First Respondent terminated the contractual relationship with the Claimant without just cause on 31 January 2011, by signing the employment contract with the Second Respondent. 14. On 15 February 2011, the Single Judge of the Players’ Status Committee (hereinafter: the SJ PSC) authorised the Football Federation from country E to provisionally register the First Respondent with the Second Respondent with immediate effect. 15. In their joint reply to the present claim, the First Respondent and the Second Respondent (hereinafter: the Respondents) rejected the Claimant’s claim, stating that the First Respondent did not breach the contract and that the Second Respondent could not be involved at all. 16. They first of all contested that media reports had announced the transfer of the First Respondent to the Second Respondent in late autumn 2010. However, they emphasised that rumours regarding transfers of players can be found daily in the internet and consequently, are irrelevant for the present case. They confirmed that the sport director of the Second Respondent was indeed in country B in November 2010 in order to observe a few players, but the parties did allegedly not yet enter into negotiations. Furthermore, the First Respondent allegedly only mentioned in interviews that he was willing to leave his club on 31 January 2011 and to go to Europe. 17. The Respondents also denied that the First Respondent’s agent could not be reached between 21 December 2010 and 18 January 2011. Furthermore, it would be illogical that the Claimant would try to contact the First Respondent’s agent even after 31 December 2010 after having stated that in line with the Regulations of the Football Association from country B, the missing answer of the First Respondent would mean his agreement to extend the contract. 18. With regard to the Claimant’s allegation that it was not informed about the Second Respondent’s interest in the First Respondent, the Respondents underlined that the First Respondent’s agent had informed the club from country B on 20 December 2010 about the First Respondent’s willingness to move to Club D. Consequently, the Claimant knew about the First Respondent’s willingness to leave the club and therefore, the Second Respondent did not have to contact the Claimant, since the purpose of art. 18 par. 3 of the Regulations is to give a club the chance to keep a player. Furthermore, the First Respondent held that even without the move to the Second Respondent, he would have left the club anyway due to several other good offers. 19. Furthermore, referring to the e-mail of the Football Association from country B (cf. point 13 above), in which the latter stated that the First Respondent would be under contract with the Claimant until 31 January 2011, the Respondents underlined that even the evidence provided by the Claimant shows that its employment contract with the First Respondent had expired on 31 January 2011. Additionally, the Claimant never mentioned in the proceedings regarding the provisional registration of the First Respondent that the contract between the Claimant and the First Respondent had been extended for another year. 20. The Respondents also pointed out that the Claimant did not contact the First Respondent in January 2011 when he was participating in the Continental Cup with the association team of country B in order to inform him about his training schedule after his return, evidence that it was aware of the contract’s expiry. 21. Equally, not only was an extension of the contract between the First Respondent and the Claimant not concluded, but it was also not notified to the Football Association from country B. According to the Respondents, the silence of a party cannot have any relevant legal impact, since this possibility would constitute a unilateral option, which is, in accordance with the longstanding jurisprudence, invalid and inadmissible. 22. On the other hand, the Respondents admitted that their employment contract was concluded on 31 January 2011 and that the First Respondent was registered for the Second Respondent on the same day, since the transfer window of Europe closed on this date. However, it is allegedly a common procedure to sign a new contract before the previous one expires and there is no rule prohibiting the coincidence of the last day of the previous and the first day of the new employment relationship. Consequently, the existence of two employment contracts during one day cannot fall under art. 18 par. 5 of the Regulations. In any case, the contracts were not valid for the same period. When the employment contract concluded between the First Respondent and the Claimant expired, i.e. at 23.59 in country B, it was 15.59 in country E and as a consequence, the Second Respondent hired the First Respondent after the expiry of his previous contract. 23. Concerning the compensation claimed by the Claimant, the Respondents contested the nature of clause 3 of the supplemental contract, denying that it is a compensation clause. Therefore, if compensation at all should be due, the calculation shall be based on art. 17 of the Regulations. In this case, also the remaining period of the contract, i.e. one day, as well as the circumstance that the First Respondent would have remained unemployed due to a few hours and that the Claimant did not show enough interest in keeping the First Respondent but rather in receiving a financial compensation (cf. the decision of the SJ PSC) shall be taken into account. 24. Finally, the Respondents stated that the Claimant is in bad faith, since no club would pay the amount of EUR 1,000,000 a few hours before the expiry of the contract. Moreover, a First Respondent cannot be required to accept being unemployed during a few months only because his previous employer wants an amount of EUR 1,000,000 just hours before the contract expires. 25. According to the employment contract concluded between the Respondents, on 31 January 2011, valid from the date of its signature until 30 June 2014, the First Respondent was entitled to a monthly salary of EUR 100,000 gross. Moreover, the Second Respondent agreed to pay a special payment to the First Respondent amounting to EUR 250,000 gross to be paid at the end of February 2011. 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 8 February 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. article 21 par. 2 and 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 in combination with art. 22 lit. a) 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 a dispute between a club and a player in relation to the maintenance of contractual stability where there has been an ITC request, in particular regarding the issue of the ITC, sporting sanctions or compensation for breach of contract. 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 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 8 February 2011, the 2010 edition of said Regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging the above-mentioned facts as well as the arguments and documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. 5. The members of the Chamber acknowledged that the Claimant and the Fist Respondent were bound by an employment contract, which was signed on 23 January 2010 valid until 31 January 2011. The Claimant, on the one hand, maintains that the employment contract was breached by the First Respondent by entering into an employment contract with the Second Respondent covering the same period and thus, had terminated their contractual relationship without just cause as well as that the Second Respondent has induced the First Respondent to breach the contract. In particular, the Claimant alleges that the contract was extended tacitly until 31 January 2012, since it proposed a contract extension to the First Respondent and, in accordance with the Regulations of the Football Association from country B, in the absence of an answer by the player, it is deemed that he has agreed to it. 6. The Respondents, on the other hand, rejects such claim maintaining that the contract between the Claimant and the First Respondent expired on 31 January 2011 and that a contractual extension had to be agreed between the contractual parties. Therefore, the contract at the basis of the present dispute expired on 31 January 2011, date of the signature of the employment contract between the Respondents. As a consequence, the two employment contracts had a simultaneous validity for one day only. 7. Having considered the position of the parties, the members of the DRC concluded that the underlying issue in the present dispute, considering the claim of Claimant and the allegations of the Respondents, was to determine whether the employment contract signed between the Claimant and the First Respondent had been validly extended until 31 January 2012. 8. In this context, the DRC deemed it appropriate to remind the parties of the basic elements of a valid contract, namely an offer, consisting of an expression of willingness to contract on a specific set of terms with a view that they are accepted by its counterparty and that both sides will become contractually bound, and an acceptance of said offer, consisting of an expression of absolute and unconditional agreement to all the terms set out in the offer. In particular, an eventual extension of a contract must be expressly accepted by both parties. 9. Therefore, the Chamber highlighted that the Claimant itself admitted that the First Respondent never accepted the unilateral extension allegedly proposed. In these circumstances, the Chamber considered that the argument of the Claimant that an extension of the contract would be subject to an unilateral notice from the club and that the silence of the player was to be considered a tacit acceptance cannot be followed. A valid contract as well as a valid extension of such contract depends on the explicit acceptance of both parties. 10. In view of all the above considerations, the Chamber concluded that the contract between the Claimant and the First Respondent was valid until 31 January 2011. 11. Once established the validity of the contract, the DRC deemed that it was necessary to consider whether there were overlapping contracts, considering that the Claimant alleges that the First Respondent breached the contract by signing an employment contract with the Second Respondent for the same contractual period. 12. In this respect, the Chamber was eager to first emphasise that the Claimant accepted being aware of the intention of the Second Respondent to sign a contract with the First Respondent already in 20 December 2010 (cf. point I.11). In this respect, and considering that the contract was valid until 31 January 2011, the Chamber concluded that the Second Respondent had acted in accordance with art. 18 ar. 3 of the Regulations. 13. In continuation, the DRC considered that the contract at the basis of the dispute and the employment contract signed by and between the Respondents had overlapping validity for one day, i.e. the 31 January 2011. 14. In this respect, the members of the DRC highlighted that the simultaneous validity of two contracts for a few hours does not contravene the aim and principle of contractual stability between professionals and clubs, since the contract would expire in the following day. Moreover, the members of the DRC took note that the Second Respondent had the obligation to register the player during an open registration window and had to conclude the contract until that date. 15. In this context, the DRC concluded that the Claimant had no contractual basis to request a compensation for breach of contract and therefore, decided that the claim of the Claimant is rejected. III. Decision of the Dispute Resolution Chamber The claim of the Claimant, Club A, is rejected. ***** 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: Jérôme Valcke Secretary General Encl. CAS directives