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 25 April 2014, in the following composition Geoff Thompson (England), Chairman Ivan Gazidis (England), member Alejandro Marón (Argentina), member Theo van Seggelen (Netherlands), member Takuya Yamazaki (Japan), member on the claim presented by the club, Club J, from country B as Claimant against the player, Player H, from country B as First Respondent and the club, Club Z, from country C as Second Respondent and the club, Club D, from country C as Third Respondent regarding an employment-related dispute 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 25 April 2014, in the following composition Geoff Thompson (England), Chairman Ivan Gazidis (England), member Alejandro Marón (Argentina), member Theo van Seggelen (Netherlands), member Takuya Yamazaki (Japan), member on the claim presented by the club, Club J, from country B as Claimant against the player, Player H, from country B as First Respondent and the club, Club Z, from country C as Second Respondent and the club, Club D, from country C as Third Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 30 March 2007, Club J, from country B (hereinafter: the Claimant), and Player H, from country B (hereinafter: the player or First Respondent), signed an employment contract valid as from the day of signature until 1 March 2010. 2. On 7 January 2009, the parties concluded a “Termo de Rescisão” by means of which they mutually terminated the contract dated 30 March 2007. 3. According to the Claimant, on 8 January 2009, it concluded a new employment contract with the player (hereinafter: the employment contract) valid as from the date of signature until 8 January 2014. According to the employment contract, the player was entitled to receive 415 currency of country B. Moreover, it contained a penalty clause of USD 3,000,000 for “overseas”. 4. On 19 January 2009, the Claimant and Club Z, from country C (hereinafter: the Second Respondent), concluded a “contract” (hereinafter: the transfer agreement) for the transfer of the player from the Claimant to the Second Respondent. 5. According to article 3 of the transfer agreement “[the Second Respondent] will sign a professional Contract on football playing valid till June 30, 2013 with the player. If during that period [the Second Respondent] realises a transfer of the player to another club in country C or worldwide and if it indicates a financial compensation, it will be divided in proportion to 60% for [the Second Respondent] and 40% for [the Claimant]”. 6. Moreover, article 5 of the transfer agreement states that “By signing this [transfer agreement] [the Claimant] is obliged to give up any further financial compensation from [the Second Respondent] regarding the transfer progress or training of the player (…) or regarding solidarity, other than provided by the Article 3 of this [transfer agreement]”. 7. Additionally, article 6 reads “[the Second Respondent] reserves the right to temporarily cancel the Contract (…) if the player does not fit into the environment of country C, if the player does not win his way to play in the 1st team or if he breaks any laws of the Republic of country C or provisions of the Discipline Code (…) In that case [the Second Respondent] will inform [the Claimant] of the reasons of the cancellation”. 8. On 8 January 2010, the Second Respondent and Club D, from country C (hereinafter: the Third Respondent) concluded a transfer agreement for the transfer of the player to the Third Respondent for the total amount of EUR 100,000. 9. On 30 April 2010, country b Football Association sent a fax to country C Football Federation, notifying the latter about the fact that the player had a contract with the Claimant and that his transfer from the Second Respondent to the Third Respondent was made without the proper authorization. On 2 June 2010, the country C Football Federation replied to the letter by asserting that, according to the Second Respondent, the player had been transferred on a definitive basis. 10. On 17 May 2010, the Claimant sent a letter to the Second and Third Respondent requesting the amount of USD 3,000,000 since “[the Claimant] not only deems that the player by signing a new employment contract with [the Third Respondent] without its consent, has unilaterally terminated their valid employment contract without just cause during the protected period (…) but also that [the Second Respondent] and [the Third Respondent] have clearly induced the player to breach such labour bound”. 11. On 18 May 2010, the Second Respondent replied to the Claimant’s aforementioned letter by stating, inter alia, that it was clear that the transfer agreement was for the definitive transfer of the First Respondent since “it regulates further transfer (…) – by and from [the Second Respondent]– to a third club, which would not be possible if the player would be loaned”. 12. In this framework, on 3 August 2010, the Claimant lodged a claim against the First Respondent in front of FIFA requesting the following: a. USD 3,000,000, as per the penalty clause contained in the employment contract dated 8 January 2009, plus 5% interest p.a. as of 8 January 2010; b. Sporting sanctions to be imposed; c. Legal expenses. 13. Moreover, the Claimant requested that the Second and Third Respondent were to be considered as jointly and severally liable. 14. In particular, the Claimant explained that the transfer agreement signed between itself and the Second Respondent was only for the temporary transfer of the player until 30 June 2013 and that it was registered as such with city of country B Estate Federation. In this respect, the Claimant provided a document titled “Convenção Especial” (hereinafter: the special convention), dated 6 February 2009, according to which the player was on “international loan” as from 25 January 2009 until 30 June 2013. According to the Claimant, the special convention was signed by the player and the Second Respondent, and therefore, they were aware of its content. 15. In continuation, the Claimant argued that, disregarding the fact that the player had a valid contract with the Claimant until 8 January 2014, on 8 January 2010 the Second Respondent transferred him to the Third Respondent “without the necessary consent or agreement of [the Claimant]…”. In this respect, the Claimant argued that the player’s definitive transfer from the Second Respondent to the Third Respondent was “naturally conditioned” to its consent. 16. In addition, the Claimant asserted that the player was registered with the Third Respondent without the necessary issuance of his ITC from the country B Football Association or even a provisional authorization from the Single Judge of the PSC. In this respect, it asserts that the player’s ITC was not returned to the country B Football Association nor issued again by the latter in favor of the country C Football Federation. 17. As conclusion, the Claimant argued that the player “by signing a new employment contract with [the Third Respondent] for a period coinciding with the one of the valid contractual link bounding him to [the Claimant] and without the latter’s agreement, has unilaterally breached their employment contract…”. 18. On 29 November 2010, the First Respondent replied to the claim, firstly stating that he “never signed a Professional Contract dated 8 January 2009 for [the Claimant]”. In this respect, he claims that his signature on the contract was “fabricated and is obviously forged”. 19. The player argued that at the moment the employment contract was supposedly signed, the negotiations with the Second Respondent had concluded and therefore “there really was no reason why [the player] would then sign a new contract with [the Claimant] for another five years”. The player further stated that it was not logical to sign a new employment contract 11 days before the transfer agreement was signed. 20. In continuation, the player claims that he was always told he was going to the Second Respondent on a permanent basis and that “[the player’s] sense of the entire matter was that [the Second Respondent] had become my new club”. In this respect, he further alleges that the transfer agreement clearly refers to a “final and lasting transfer and that [he] will sign a Professional contract with [the Second Respondent] by 30 June 2009”. 21. In addition, the First Respondent asserts that from 13 January 2009 until 11 June 2009 he was in country C, and therefore, he could not have signed the special convention dated 6 February 2009. He further claims that he “never saw that document”. Hence, he asserts that his signature on the special convention is also forged. 22. Also on 29 November 2010, the Third Respondent replied to the claim by asserting that both the First Respondent and the Second Respondent confirmed to it that there was no dispute related to the transfer of the player. In this regard, the Third Respondent claims that it “has absolutely no knowledge of the previous relations between [the Claimant], [the First Respondent] and [the Second Respondent] regarding the transfer of [the First Respondent] from [the Claimant] to country C”. 23. On 9 December 2010, the Second Respondent replied to the claim firstly stating that the only document actually signed by it “and which represents the will of the parties…” is the transfer agreement signed on 19 January 2009. In this respect, it alleges that “All other documents that [the Claimant] base it’s claim on, are created by [the Claimant] and signatures on these documents were FORGED i.e. Employment Contract between [the Claimant] and [the player] as well as [the Claimant’s] request to country B Football Association…”. 24. The Second Respondent argues that the special convention was never signed by it. In this regard, it asserts that the Claimant sent to it said document but it refused to sign it and that “obviously [the Claimant’s] representatives scanned Mr. L’s signature and paste it to the [special convention]”. 25. In continuation, the Second Respondent argues that neither the Claimant nor the player ever mentioned any kind of employment contract, and thus, the Second Respondent could not have been aware that such possibility could exist. 26. In respect of the transfer agreement, the Second Respondent asserts that it is clear that said agreement refers to a final transfer and not to a loan, since if the latter was the case, it should have contained articles such as a statement establishing that the player had a contract with the Claimant, that the player is being loaned to the Second Respondent or that a future transfer of the player is subject to the Claimant’s approval. In this respect, the Second Respondent alleges that “there was no obligation whatsoever (and it was not stipulated in the transfer agreement) that [the Second Respondent] should ask for prior approval from [the Claimant] in case of the further transfer of the player”. 27. To strengthen its position, the Second Respondent enclosed an e-mail exchange between it and the Claimant during December 2008, in which it stated, inter alia, that “…for loan we are not interested”, that “we suggest (…) Permanent transfer (…) on the period up to 4 years” and refusing to make some changes to the transfer agreement proposed by the Claimant that, according to the Second Respondent, could have led to consider the transfer agreement as a loan. 28. Furthermore, the Second Respondent argues that the First Respondent was registered as an amateur with the country B Football Association and only when the transfer agreement was reached, the Claimant allegedly concluded the employment contract with the First Respondent. 29. The Second Respondent further states that another inconsistency that indicates a potential fraud is the fact that there are two different “ITC issued by The Claimant and certified by the country B Football Association” which state different terms of validity of the First Respondent’s contract with the Claimant dated 8 January 2009. In this regard, The Second Respondent argues that on the first “ITC” it is stated that said contract runs from 8 January 2009 until 8 January 2014 and on the second one it is established that such contract runs from 8 January 2009 until 31 December 2012. 30. Furthermore and in respect of the contract dated 8 January 2009, the Second Respondent asserts that the fact that it was to transfer the player were over, and at the time when the player was in country B “to sign transfer documents”, strengthens the assumption that the player’s signature was also forged. 31. Additionally, the Second Respondent claims that the amount contained in the penalty clause is extremely high and thus, completely disproportionate. Moreover, it argues that such clause does not stipulate under what conditions and in which cases it is applicable. 32. Finally, the Second Respondent asserts that at the moment it transferred the player to the Third Respondent, it offered the Claimant, on 12 January 2010, to make the payment as stated in article 3 of the transfer agreement, however, the Claimant refused to provide its bank account details. 33. In its reaction to the Respondents’ positions, the Claimant stressed that the employment contract was “dully and freely signed by [the player]”. In this respect, it enclosed a statement from a country B Notary which supposedly confirms the authenticity of the player’s signature inserted on said contract. Moreover, the Claimant alleges that it is the First and Second Respondent who need to prove that the disputed documents were in fact forged, since the burden of proof lies on them. 34. In continuation, the Claimant enclosed a declaration from the country B Football Association, dated 4 April 2011, in which the latter acknowledges that the player is “regularly enrolled with [the Claimant], for the period of 08/01/2009 to 08/01/2014” and that he “was transferred on a loan basis to [the Second Respondent] of the country C Football Federation for the period of 25/01/2009 to 30/06/2013”. In this respect, the Claimant argues that the discrepancy between the First Respondent’s “ITC” is merely an administrative mistake which was corrected by means of the aforementioned declaration. 35. The Claimant further alleges that the special convention was attached to the player’s ITC and that the Second Respondent “had the legal obligation to be aware of such special convention”. 36. In respect of the transfer agreement, the Claimant stressed that it is clear it referred only to the loan of the First Respondent. In this regard, the Claimant refers to article 6 of the transfer agreement, and argues that “if the relevant contract would really concern a definitive transfer (…) there would be no reason whatsoever for such clause to have been inserted in the transfer agreement, but rather in the employment contract between [the Second Respondent] and [the player]”. 37. In addition, the Claimant alleges that since the transfer agreement establishes the period of the player’s employment contract with the Second Respondent, it is obvious that said agreement refers only to a loan and that, in any case, the transfer agreement “does not mention at all (…) that the transfer was made on a definite basis”. 38. In relation to the correspondence exchanged between the Claimant and the Second Respondent during December 2008, the Claimant stresses that it always referred to a “loan period” and to “possible extensions of such loans”. 39. Finally and only as a subsidiary remedy, the Claimant argues that it is entitled to USD 40,000 plus 5% interest p.a. as of 10 January 2010 corresponding to the 40% of the transfer compensation agreed between the Second Respondent and the Third Respondent. 40. In its duplica, the Second Respondent entirely upheld its position and disputed the fact that it should pay interest over the USD 40,000 claimed by the Claimant since it did all the possible diligences to make the payment, but it was the Claimant who refused such. 41. Having been requested by FIFA to provide the original versions of the employment contract dated 8 January 2009 and of the special convention, the Claimant provided an alleged original version of said contract. However, regarding the special convention, the Claimant only presented a certified copy and a declaration from the country b Football Association, dated 8 October 2013, in which it is stated that “the document ‘Special Convention of International Transfer’ concerning the temporary transfer of [the First Respondent] (…) was exchanged/signed between the clubs in question only via e-mail, the reason why the respective original copy registered before the Estate Football Federation of city of country B and recognized by [country B Football Association] is the one which has the original stamp of the aforementioned Estate Federation…”. 42. Despite having been asked to do so, the First Respondent and the Third Respondent did not submit any further comments. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 3 August 2010. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2008 and 2012 editions 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. b) of the Regulations on the Status and Transfer of Players (edition 2012), the Dispute Resolution Chamber is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a country B club, a country B player and two country C clubs. 3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2009, 2010 and 2012), and considering that the claim was lodged on 3 August 2010, the 2009 edition of the aforementioned regulations (hereinafter: the 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, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the file. 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. First of all, the members of the Chamber acknowledged that according to the Claimant, on 8 January 2009 it and the player concluded an employment contract valid until 8 January 2014, whilst the First Respondent disputes said allegation and asserts that he never signed said contract and that his signature was forged. 6. In continuation, the Chamber observed that on 19 January 2009, the Claimant and the Second Respondent concluded a transfer agreement for the transfer of the player to the Second Respondent. Moreover, the Chamber recognized that on 8 January 2010, the Second Respondent transferred the player to the Third Respondent. 7. The DRC then turned its attention to the complaint of the Claimant, which argues that the transfer agreement dated 19 January 2009 was only for the temporary transfer of the player until 30 June 2013 and that after that date, the player should have returned to the Claimant. The Claimant indicated that, apart from the content of the transfer agreement, the loan can be proven by the special convention signed between the parties. Therefore, the Claimant asserts that, by leaving to the Third Respondent without its consent, the player breached the employment contract and the Second and Third Respondent must be considered as jointly and severally liable for said breach. In particular, the Claimant requests USD 3,000,000 as per the penalty clause contained in the said employment contract. 8. The Chamber further acknowledged that the First and Second Respondents reject said allegations and are of the strong opinion that the transfer agreement was made on a definitive basis and thus, the player was free to sign a new employment contract with the Third Respondent. 9. In view of the above-mentioned facts, the members of the Chamber considered that the core element of the matter at hand is to determine the true nature of the transfer agreement concluded on 19 January 2009 by means of which the Claimant and the Second Respondent had agreed upon the transfer of the player to the Second Respondent, i.e. whether said transfer agreement referred in fact to a definitive transfer of the player or only to a loan. 10. At this point, and for the sake of good order, the DRC deemed it appropriate to remind the parties of the basic principle of the 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. 11. In continuation, the members of the Chamber observed that whereas the Claimant argues that the First and Second Respondent signed the special convention in which it is clearly stated that the player will be on “international loan” with the Second Respondent, the player and the Second Respondent argue that they never signed said document and that their signatures were forged by the Claimant. At this point, the members of the Chamber deemed it important to highlight that it is beyond the Chamber’s competence to determine as to whether a document or signature has been falsified or tampered with. In fact, such matters would fall within the competence of a penal court. 12. In view of aforementioned, and considering the dissent between the parties in respect of the question as to whether or not the special convention between the Claimant and the Second Respondent had been concluded, the members of the Chamber referred once more to art. 12 par. 3 of the Procedural Rules, and held that the application of the said principle in the present matter led to conclude that it was up to the Claimant to prove the existence of the special convention. 13. Having stated the above, the Dispute Resolution Chamber recalled that the First and Second Respondent maintained that they never signed the special convention with the Claimant and maintained that the signatures contained on the copy of the special convention remitted by the Claimant were forged. What is more, the Claimant admitted being unable to provide the special convention in its original form. On account of these considerations, the Chamber held that the fact that the Claimant had only submitted a copy of the disputed contract was insufficient to establish the existence of the special convention. 14. Consequently, the Chamber considered that it did not have sufficient elements in order pronounce itself on whether said document had been in fact signed by all the parties involved or not. Therefore, the Chamber decided not to take into consideration the above-mentioned document for the assessment of the matter at hand. 15. In continuation, the Chamber noted the Claimant’s assertion in respect that in the communications held between it and the Second Respondent, it always referred to a “loan period”. Moreover, the Chamber recognized that, on its part, the Second Respondent claims that in said communications, it can be clearly seen that it always refused to accept the player on loan. 16. In this context, the Chamber turned its attention to the communications exchanged between the Claimant and the Second Respondent at the moment the transfer of the First Respondent was being negotiated. In this respect, the Chamber considered that the e-mail exchange between the parties lacked clarity and, therefore, decided that said communications could not serve as a basis in order to establish with certainty what the real intention of the parties was when they signed the relevant transfer agreement. 17. As a result of the above, the Chamber focused its attention on the contents of the transfer agreement. In this respect, the Chamber took note of the Claimant’s assertions in relation to article 6 of the transfer agreement, which provides that the Second Respondent had to inform the Claimant in case the employment contract concluded between it and the player is terminated. In this respect, the Claimant argues that this article would not have made sense if the transfer agreement referred to a definitive transfer and thus, said article clearly shows that said transfer agreement was only made on a temporary basis. 18. In addition, the Chamber noted that the Claimant argues that article 3 of the transfer agreement provides that the player and the Second Respondent will sign an employment contract until 30 June 2013 and thus, providing a specific period of time for which the player was going to be loaned. 19. The Chamber further observed that, in the Second Respondent’s view, the contents of the transfer agreement clearly shows that it refers to a definitive transfer, in particular, its article 3, which could not have been inserted if the agreement referred only to a temporary transfer. In any event, the Second Respondent claims that the transfer agreement does not contain any clauses which could lead to think that it was a loan agreement. 20. In view of all the foregoing considerations and after a careful and exhaustive analysis of the relevant agreement, the members of the Chamber were of the unanimous opinion that the said transfer agreement was in fact an agreement for the definitive transfer of the player to the Second Respondent and not for his loan. 21. The aforementioned conclusion was reached essentially based on three points, i) the transfer agreement does not contain any reference to a valid existing contract concluded between the player and the Claimant, ii) the transfer agreement does not contain a specific period of time for which the First Respondent would be loaned and it merely refers to the employment contract that the First and Second Respondents would sign. In this respect, the members of the Chamber do not share the Claimant’s view that this provision implies a loan period, and iii) article 3 of the transfer agreement does not provide that an eventual future transfer of the player to a third club is subject to the Claimant’s approval. In this respect, the Claimant’s position that a further transfer of the player to a third club was “naturally” conditioned to its consent cannot be upheld. If the Claimant would have wanted to have any saying in a future transfer of the relevant player, said provision should have been inserted in the relevant agreement. 22. Furthermore, it is the Chamber’s view that the Claimant’s argument that article 6 of the transfer agreement would not make sense if the transfer was made on a definitive basis, has to be rejected. In this regard, the members of the Chamber were of the unanimous belief that the objective of said article is, as its own wording provides, to inform the Claimant of the reasons of an eventual termination of the employment contract between the First and the Second Respondent. Hence, article 6 granted the Second Respondent the right to cancel the employment contract with the player for the reasons stipulated in said article. In this way, the Second Respondent made sure that should it decide to terminate the employment contract with the player, it would not be held liable by the Claimant for the loss of the 40% of a future transfer compensation as stipulated in article 3. 23. As to the Claimant’s argument that the transfer agreement did not mention that it was for the definitive transfer of the player as well as the argument that said agreement established the period of the player’s employment contract with the Second Respondent and that, therefore, it obviously refers to a loan, the Chamber outlined that indeed the transfer agreement did not mention that the transfer was for the definitive transfer of the player, but stressed that it neither mentioned that it was for the loan of the player. Also, in the Chamber’s opinion, the reason for which the transfer agreement indicated the period of the player’s employment contract with the Second Respondent may well have been to indicate the period of time during which article 3 of the transfer agreement was applicable. Hence, none of the two aforementioned arguments would lead to conclude that the transfer of the player to the Second Respondent was on a loan basis. 24. For all the above-mentioned reasons, the members of the Chamber were convinced that the transfer agreement was in fact an agreement for the definitive transfer of the player from the Claimant to the Second Respondent and thus, even if it is assumed that the First Respondent indeed signed the employment contract dated 8 January 2009, at the moment the Claimant signed the transfer agreement, it tacitly accepted the termination of said employment contract. 25. In conclusion, the Chamber decided that, in view of the absence of a breach of contract by the player, the claim of the Claimant clearly lacks grounds and thus, it must be rejected in its entirety. 26. As to the alternative request of the Claimant based on the sell-on clause stipulated in article 3 of the transfer agreement, the Chamber referred to art. 24 par. 1 of the Regulations and decided that it was not competent to adjudicate on this part of the Claimant’s claim. III. Decision of the Dispute Resolution Chamber The claim of the Claimant, Club J, 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: Markus Kattner Deputy Secretary General Encl. CAS directives