F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of theDispute Resolution Chamber passed in Zurich, Switzerland, on 12 March 2015, in the following composition: Geoff Thompson (England), Chairman Takuya Yamazaki (Japan), member Santiago Nebot (Spain), member Mohamed Mecherara (Algeria), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the club, Club L, from country B as Claimant against the player, Player J, from country P as Respondent 1 and the club, Club M, from country R as Respondent 2 regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of theDispute Resolution Chamber passed in Zurich, Switzerland, on 12 March 2015, in the following composition: Geoff Thompson (England), Chairman Takuya Yamazaki (Japan), member Santiago Nebot (Spain), member Mohamed Mecherara (Algeria), member Guillermo Saltos Guale (Ecuador), member on the claim presented by the club, Club L, from country B as Claimant against the player, Player J, from country P as Respondent 1 and the club, Club M, from country R as Respondent 2 regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 2 January 2009, Club L, from country B (hereinafter: the Claimant or Club L), the Club M, form country R (hereinafter: the Respondent 2 or Club M) and Player J, form country P (hereinafter: the Respondent 1 or the player) concluded a loan agreement, according to which the player would be temporarily transferred from Club M to Club L, as from 1 January 2009 until 31 December 2009, i.e. for 1 year. 2. According to art 1.2 of the loan agreement, “The player assumes the obligation to represent in Club M on January 05, 2010 for the continuity of the execution of the employment contract Club M, which is now suspended for the period of temporary transfer (loan). In case the clubs schedule a later date for its player’s group representation, the player is authorized to accomplish this new date”. 3. Article 2.1 of the loan agreement further establishes that “The transfer fee for the temporary transfer (loan) of the player regulated by this agreement is EUR 125,000 net on yearly basis”. 4. Also art. 4.1.2 stipulates that: “Club L is obliged: […] To sign the employment agreement with the player for the whole period of temporary transfer (loan), on terms to be agreed with the player in accordance with the total annual budget as referred to in article 1 of this agreement”. 5. Furthermore, according to art. 7.1 of the loan agreement, “Club L shall not, upon signing the player on loan, transfer him to a 3rd club”. 6. In addition, art. 7.2 of the loan agreement stipulates that “In case if during the period of the employment contract with Club L from 1 January 2009 till 31 December 2009 the player received an offer to transfer to any 3rd club and Club M transfers the rights […] over the player to third club, Club L will be entitled to 15% of the profit over an eventual future and definitive transfer of the player from Club M to the third club”. 7. Finally, art. 7.5 of the loan agreement establishes that “Under no circumstances shall the loan agreement be extended beyond December 31, 2009”. 8. On 8 January 2009, the Claimant and the Respondent 1 signed an employment contract, valid as from 1 January 2009 until 30 June 2009. According to art. 2 of the contract, the contract may be extended for one more season, namely season 2009/2010, in case the option is exercised until 31 March 2009. 9. In addition, according to art. 11 and 13 of the contract, the Respondent 1 is entitled to receive from the Claimant: - EUR 10,000 as sign-on fee payable in 3 instalments; - EUR 3,000 as monthly salary, payable at the latest on the 10th day of the subsequent month; - EUR 500 per month for accommodation costs; - EUR 500 per month for moving costs; - 2 air tickets per season. 10. Moreover, art. 21 of the contract provides that the party that prematurely terminates the contract should pay compensation to the other party corresponding to the salaries for the residual period of the contract and should not exceed the double of the amount established in art. 5 par. 2 of the Law of the 24.02.1978. 11. According to a confirmation of the country B Football-Association, dated 28 January 2010, “On 24th January 2009, we received an ITC from the country R Football Association. without separate agreement. Therefore, this international transfer was registered as permanent transfer and not on loan. On 9th April 2009, a notification of professional player’s contract was entered, signed by our club Club L. and player J. According to this notification, the player’s contract ends on 30th June 2010”. 12. On 7 January 2010, the Claimant and the player signed a new transfer agreement, according to which the Respondent 1 would be loaned from Club M to Club L as from 1 January 2010 until 30 June 2010. This agreement was not signed by Club M, even though the latter was mentioned as a party in the agreement. 13. According to art. 1.4 of the new agreement, “The player and Club M agree with a total annual budget of EUR 75,000 (gross) for the employment contract that is offered to Club L”. 14. In addition, as per art. 2.1 of the new agreement, “The transfer fee for the temporary transfer (loan) of the player regulated by this agreement is EUR 62,500 net of the six months period”, payable on 1 February 2010. 15. On 14 January 2010, the Club G, from country G, from country B, Club M and the player signed another transfer agreement, by means of which Club M temporarily transferred the player to Club G, for the period ranging from 14 January 2010 until 31 December 2010, for the amount of EUR 140,000 net, payable as follows: EUR 95,000 on 30 January 2010 and EUR 45,000 on 30 June 2010. 16. Furthermore, according to art. 7 of said agreement, “The parties agree that Club G shall be granted the definitive transfer option at the following terms and conditions: The fee for the definitive transfer of the player is fixed by Club M at net amount of EUR 1,000,000 (One million EUR). The parties agree that if Club G wishes to acquire the definitive transfer of the rights over the player, Club G shall send a written notice of this option to Club M till 30 November 2010”. 17. On 19 January 2010, the Respondent 2 requested the country B Football Association to return the International Transfer Certificate (ITC) of the Respondent 1 to the Football Union of country R, “taking into account that the loan period of the above said player expired on 31st December 2009”, which was denied on the same day by the country B Football Association. 18. On 25 January 2010, in view of the country B Football Association’s refusal to return the player’s ITC, the Respondent 2 requested FIFA to “oblige country B Football Association to return ITC of Player J to country R Football Association. After that country R Football Union will be able to resend ITC to country B Football Federation in order to register player of Club G”. 19. On the same date, Club G equally requested FIFA to decide upon the matter involving the country B Football Association, the country U Football Association, the Claimant and the Respondent 2, with a view to obtain the player’s registration with Club G. 20. According to the Claimant, in view of the obligation of solidarity among the country B clubs, it authorized the country B Football Association to deliver the player’s ITC to the country R Football Association in order to allow the pursuit of his career with Club G as from 29 January 2010. 21. On 4 February 2010, the Claimant lodged a claim in front of FIFA against the Respondent 1 and the Respondent 2, for breach of contract and inducement to breach, respectively, requesting the payment of compensation in the total amount of EUR 250,000, estimated in view of the following facts: - the transfer fee offered by Club L to Club M on 7 January 2010, amounting to EUR 62,500 (cf. point I.14. above); - the player’s gross remuneration, corresponding to EUR 100,000; - the Respondent 2 profited from an increase in the Respondent 1’s value, arising from the period he played with the Claimant; - the Claimant should have received 15% of any transfer fee payable for the Respondent 1 in case of transfer to a third club (cf. point I.6. above); - the Claimant was deprived of its best forward, in a sudden and incorrect manner. 22. In case the DRC considers that no loan agreement was concluded between the Claimant, the Respondent 1 and the Respondent 2, the Claimant requests that no sporting sanctions should be imposed on it, based on the fact it did not oppose to the issuance of the Respondent 1’s ITC, allowing him to pursue his career with Club G, and that the Respondent 2 was responsible for the failure to inform the country B Football Association that the Respondent 1’s transfer in January 2009 was temporary (cf. point I.11. above). 23. In its claim, the Claimant explains that in January 2009, the country R Football Union failed to provide the country B Football Association with a copy of the loan agreement mentioned in point I.1. above and, therefore, the Respondent 1 was mistakenly registered on a permanent basis with the Claimant. In December 2009, the Claimant allegedly contacted the Respondent 2 with a view to discuss the extension of the Respondent 1’s employment with the country B club. In this regard, the Respondent 2, by means of its e-mail dated 11 January 2010, stated the following: “As regards the prolongation of the loan of Player J we have reviewed the draft of the player transfer agreement of 07.01.2010 [cf. point I.12. above] sent to our club and I’d like to discuss the following. Art. 4.3.1. sets the obligation of Club M to guarantee the issuance of the ITC by the [country R Football Union] until 10 January 2010. Player J will return only on 1 of July 2010 and ITC shall be issued when a player returns to his club of origin, so we propose that now we will not request and re-send ITC for the player, so it will remain in [country B Football Association] till 01st of July 2010. Therefore we propose to eliminate from the text of agreement art. 4.3.1. Besides, we supposed that Player J shall give his consent to this transfer and sign this agreement before it will be signed by our club […]”. 24. Consequently, on 12 January 2010, the Claimant provided the Respondent 2 by e-mail with a copy of the loan agreement of 7 January 2010 (cf. point I.12. above), signed by the Claimant and the Respondent 1. 25. According to the Claimant, the Respondent 1 resumed training with it on 7 January 2010. However, on 14 January 2010, he was absent at training and, on the same day, the Claimant received a letter from the Respondent 2, by means of which the country R club explained that “[It] would like to inform [the Claimant] that unfortunately we have to refuse your proposal for the loan of our player J. We had to take a very difficult decision as you offered us good conditions for the player and Player J was really happy playing in your team, but we have to accept another offer which is economically better than yours […]”. In addition, the Respondent 2 requested the return of the player’s ITC to the country R Union. 26. By means of its letter dated 18 January 2010, the Claimant contested the Respondent 2’s attitude in view of the fact that an agreement had been previously reached by the parties for the extension of the Respondent 1’s loan with the Claimant until 30 June 2010. Following such letter, a dispute for the Respondent 1’s ITC was initiated in front of FIFA, as described in detail in points I.17. to I.20. above, culminating with the Claimant authorizing the country B Football Association to deliver the player’s ITC to the country R Football Union, in order to pursue his career with Club G as from 29 January 2010. 27. Based on the foregoing, the Claimant points out that the Respondent 1 agreed to the extension of his loan with the latter club, by signing the agreement of 7 January 2010 (cf. point I.12. above), and that the Respondent 2 never expressed its disagreement with such prolongation, when consulted about it. Thus, the Claimant requests to be compensated for the damage caused by the Respondent 1’s and the Respondent 2’s disrespect of their agreement. 28. In his reply, the Respondent 1 states that in January 2009 he signed an employment contract with the Claimant, which was to expire in December 2009 (cf. point I.1. above). On 5 January 2010, he claims to have returned to the Respondent 2 to continue to execute his employment contract with such club. By then, he was informed by the Respondent 2 that several clubs were interested in his services, among which the Claimant, which envisaged a prolongation of the loan. As per the Respondent 1, “At the same time another Club G proposed to Club M and to me better financial terms than Club L. And what is more important this club is higher in championship ranking and therefore has more chances to participate in the European club competitions than Club L”. Thus, the Respondent 1 and the Respondent 2 decided to conclude a new transfer contract with Club G. 29. Based on the foregoing, the Respondent 1 states that “[he] cannot agree with the claim of Club L regarding a compensation for breach of the contract as the prolongation of loan for 2010 was not finalized without consent of Club M”. 30. In reply to the Claimant’s claim, the Respondent 2 first referred to art. 7.5 of the loan contract of 2 January 2009 (cf. point I.7. above) and stated that the Respondent 1’s loan with the Claimant could not be extended beyond 31 December 2009. The Respondent 2 also pointed out that, in spite of the clear wording of said art. 7.5, the Claimant signed an employment contract with the player on 8 January 2009, extendable until 30 June 2010. Following their negotiations in December 2009, the Respondent 2 decided to decline the Claimant’s offer for the extension of the Respondent 1’s loan and, consequently, did not sign the documentation provided to it by the Claimant in this regard. Moreover, the Respondent 2 informed the Claimant on 14 January 2010 that it had not accepted the prolongation of the Respondent 1’s loan with that club (cf. point I.25. above). 31. The Respondent 2 then refers to the ITC dispute (cf. points I.17. to I.20. above) and claims that only later on it was informed that the Respondent 1 was able to play his first match with Club G on 29 January 2010, as the matter was dealt by the Claimant and Club G as an internal transfer. In this respect, the Respondent 2 deems that the Claimant breached art. 10 par. 3 of the FIFA regulations by internally transferring a player, who was contractually bound to the Respondent 2. Furthermore, the Respondent 2 deems that the Claimant also breached art. 7.1 of the loan agreement of 2 January 2009 (cf. point I.5. above), by transferring him to a third club, namely Club G. Finally, the Respondent 2 deems that the Claimant equally breached art. 4 of the Annex 3 of the FIFA regulations, by not enclosing the terms of the loan agreement to its registration request in front of the country B Football Association in January 2009. Thus, the Respondent 2 rejects Claimant’s claim. 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 4 February 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. article 21 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 (editions 2009, 2010, 2012, 2014 and 2015) 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 club, a country P player and a country R club. 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 (editions 2009, 2010, 2012, 2014 and 2015), and considering that the present claim was lodged on 4 February 2010, the 2009 edition of said 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, the DRC entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC 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. In this respect, the Chamber first acknowledged that it was undisputed by the parties that, on 2 January 2009, the Claimant, the Respondent 1 and the Respondent 2 had signed an agreement for the loan of the Respondent 1 to the Claimant, for the period of 1 January 2009 until 31 December 2009. 6. Subsequently, the Chamber also noted that the parties did not dispute that, on 8 January 2009, following the signing of the aforementioned loan agreement, the Claimant and the Respondent 1 signed an employment contract valid as from 1 January 2009 until 30 June 2009 and extendable for season 2009/2010. 7. The Chamber also noted that it remained undisputed by the parties that, on 14 January 2010, the Respondent 1, the Respondent 2 and the country B club, Club G, concluded a new agreement for the loan of the Respondent 1 to Club G, valid as from the date of signature until 31 December 2010. 8. The Chamber further noted that, on the one hand, the Claimant maintained that, in the beginning of January 2010, it was negotiating with both the Respondent 1 and the Respondent 2 an extension of the loan agreement of 2 January 2009. As a result, on 7 January 2010, the Claimant and the Respondent 1 signed a new agreement, as per which the Respondent 1 would be loaned to the Claimant as from 1 January 2010 until 30 June 2010. In this context, the Claimant referred to an e-mail of the Respondent 2, dated 11 January 2010, by means of which it indicated to agree with the extension of the Respondent 1’s loan with the Claimant, as long as the Respondent 1 also accepted it. Based on the foregoing, the Claimant deems that, the Respondent 1 and the Respondent 2, when signing a new transfer contract with Club G on 14 January 2010, respectively breached and induced the breach of the employment contract signed with the Claimant. 9. The Respondent 1 and the Respondent 2, on the other hand, deem that the new transfer agreement was legally concluded with Club G on 14 January 2010, as by then they were not anymore legally bound to the Claimant. In this respect, they indicated that the loan agreement with the Claimant had expired on 31 December 2009 (cf. point I.1. above) and that the Respondent 2 never signed the agreement of 8 January 2009 for the extension of such period until 30 June 2010. 10. From all the aforementioned, the members of the Chamber highlighted that the fundamental disagreement between the parties and the central issue to the present dispute is whether the loan agreement concluded between the parties on 2 January 2009 was indeed legally extended on 7 January 2010. 11. In this context, the DRC deemed it appropriate to remind the parties of the basic elements of a valid and binding 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 all sides involved 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, by means of a signature. 12. Bearing in mind the aforementioned principles as well as the particular circumstances of the present case, the Chamber observed that the agreement for the extension of the loan period of the Respondent 1 with the Claimant, dated 7 January 2010, a copy of which was provided by the Claimant, only bears the signatures of the latter and of the Respondent 1. However, the Chamber noted that the Respondent 2, in spite of being a party to this agreement, did not sign it. The Respondent 2, in its reply to the claim, also confirms that, in spite of its initial interest, it decided not to sign the extension of the Respondent 1’s loan with the Claimant. Therefore, an essential element for the validity of a contract, i.e. the acceptance of the offer by the counterparty, concretely expressed by the signature, is missing in the document of 7 January 2010, signed only by two of the three parties. 13. For the sake of completeness, the DRC also referred to the e-mail of the Respondent 2 dated 11 January 2010, provided by the Claimant, which the latter considers to be the proof of the Respondent 2’s agreement with the extension of the Respondent 1’s loan period. In this respect, the members of the Chamber were eager to emphasize that the expression of a possible future intention of the Respondent 2, via a rather informal means of communication, cannot be considered as the ultimate acceptance of that party to the extension of the Respondent 1’s loan and has, in the present case, no legal value in the absence of a confirmation of such intention through the actual signature of the agreement of 7 January 2010. 14. In view of the foregoing, the DRC concluded that the document of 7 January 2010, regarding the extension of the Respondent 1’s loan with the Claimant, cannot be considered as a valid and binding agreement, generating legal consequences for the parties, as it was not signed by the Respondent 2 and, consequently, lacks an essential element of validity, i.e. the unambiguous manifestation of assent to the terms thereof from one of the parties. 15. In this context, the DRC also pointed out that the loan agreement validly concluded between all parties on 2 January 2009 (cf. point I.1. above) was due to expire on 31 December 2009. Furthermore, art. 7.5. of said agreement stipulated that “Under no circumstances shall the loan agreement be extended beyond December 31, 2009”. Finally, the DRC also deemed it appropriate to point out that the Claimant was only allowed to sign an employment contract with the Respondent 1 for the duration agreed upon with the Respondent 2 on 2 January 2009, i.e. until 31 December 2009, and, thus, the Claimant’s decision to extend the player’s employment contract until 30 June 2010 without the consent of Club M was in violation of the loan agreement signed between all parties. 16. Therefore, on 14 January 2010, when the Respondent 1 established a new contractual relationship with Club G, he was a free player and was no longer contractually bound to the Claimant. Consequently, the DRC concluded that the Respondent 1 did not breach any contract with the Claimant and also no inducement to breach had been committed by the Respondent 2. 17. Based on the foregoing, the members of the DRC decided to entirely reject the claim of the Claimant. *** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Club L, 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