F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision 13 July 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 13 July 2017,

in the following composition:

Geoff Thompson (England), Chairman

Theo van Seggelen (Netherlands), member

Mario Gallavotti (Italy), member

on the claim presented by the club,

Club A, Country B,

as Claimant / Counter-Respondent

against the player,

Player C, Country D,

as Respondent 1 / Counter-Claimant

and,

Club E, Country F

as Respondent 2

regarding an employment-related dispute arisen between the parties

I. Facts of the case

1. On 30 July 2008, the Player of Country D, Player C (hereinafter: the player or the Respondent 1 / Counter-Claimant), born on 22 June 1988, and the Club of Country B, Club A (hereinafter: the club or Claimant / Counter-Respondent) signed an employment contract valid until 31 May 2011 (hereinafter: first contract).

2. The player and the club signed a second employment contract (hereinafter: second contract):

a. The club states that said contract was signed on 29 November 2010 and was set to run between 1 June 2011 and 31 May 2014. The version of the contract provided by the club indicates the start date as being 15 July 2011 and the end date is 31 May 2014, appears to be signed by both parties on each page and indicates that it has been “read and exchanged together with PLAYER C on 15.07.2011 (sic.)”

b. The version of the contract provided by the player, however, indicates the start date as being 1 June 2011 and the end date as being 31 May 2013, which has been signed by both parties, with the player’s additional signature next to the mention of 31 May 2013. The player’s version indicates that it has been “read, signed and exchanged jointly by the parties on 29/10/2010”.

3. The terms of the second contract provide that the player is entitled to the following amounts:

a. EUR 3,500 monthly salary between August and May of each season, payable during the first week of the following month;

b. EUR 2,645 as appearance fees for the 2011/12 season;

c. EUR 2,940 as appearance fees for the 2012/13 season;

d. EUR 3,235 as appearance fees for the 2013/14 season;

e. EUR 55,000 as “other wages promised by the club: seasonal guaranteed wage payments” to be paid “during the season”;

f. Appearance fees are to be paid at the end of the month of the end of the first and second halves of the season and will be payable at a rate of 100% if the player is in the starting line-up, 75% if he is fielded as a substitute, and 50% if he is a unused substitute;

g. “in case the footballer refrains from fulfilling these obligations or signs a contract with another club, he accepts and undertakes to pay a compensation of 3,000,000 to the club, that the compensation amount is neither excessive nor subject to any reduction”;

h. “in case of groundless termination of the contract by the footballer or its just termination by the club, the footballer shall pay a compensation of unjust termination of 3,000,000 to the club. Hereby compensation amount is determined by free will of the parties and shall be subject to no reduction”.

4. Article 4 of the “2010/2011 Circular” of the Football Federation G Regulations provides that “League H clubs can sign contracts with 3 foreign players on the condition that they are born on or after 01.01.1987, the expiry date of contracts with such players should be at the latest 31.05.2013 (…)”.

5. Article 4 of the “2011/2012 Circular” of the Football Federation G Regulations provides that “League H clubs can sign contracts with 3 foreign players on the condition that they are born on or after 01.01.1988, the expiry date of contracts with such players should be at the latest 31.05.2014 (…)”.

6. On 31 May 2012, the club submitted an application to the Football Federation of Country B (hereinafter: the Football Federation G) requesting that the second contract’s registration dates be modified to make the end of validity of said contract in 2014. The player’s signature does not appear on this document.

7. On 13 May 2013, the club received an offer by e-mail from the Club of Country J, Club K to sign the player on a permanent basis. The offer is valid until 16 May 2013 and is made with the condition that a transfer fee of EUR 100,000 would be paid before 15 July 2013, and a 7.5% sell-on fee would apply. Club K had previously understood that the transfer would be made free of payment, but had been made aware that there were “discrepancies of the valid contract duration”.

8. On 4 June 2013, the player sent a notice to the club that he considered the contract terminated from the 31st of May 2013 on the basis that this is what is mentioned in the second contract despite the club asserting that the second contract was valid until the end of the 2013/2014 season.

9. On 6 June 2013, the club notarised a default notice sent to the Football Federation G, indicating that the player had to stop any contact with Club K and requesting him to take note that the second contract was due to finish on 31 May 2014.

10. On 10 June 2013, the club sent a letter to the player explaining the circumstances which led the club and the Football Federation G to define the expiry date of the contract as being 2013 in light of the software problems. It equally stated that it was looking forward to having the player return to the squad for the 2013/14 season.

11. On 17 June 2013, the player asked the club for the reasons why it was not possible to submit a contract to the Football Federation G for registration until 31 May 2014, whereas another player, Player L, had received one.

12. On 20 June 2013, the club replied to the player explaining that despite an initial error in interpretation of the Football Federation G Regulations made by the Football Federation G itself, the club had made a request to the Football Federation G to modify the registration to 2014, and this was allegedly accepted. Therefore the validity of the contract is until 2014 and therefore the club expects the player to return to the club and perform his obligations. If he doesn’t, he will be considered in breach of contract and the club will file a claim against the player.

13. On 26 June 2013, the club sent an e-mail to the player’s legal representative requesting his presence for the preseason training camp which was due to start on 4 July 2013. On 26 June 2013, the player’s representative replied stating that any conversation concerning preseason should be made directly to the player or his agent as the legal representative in question does not represent the player generally.

14. On 5 July 2013, the player stated that he considered that his contract was terminated on 31 May 2013 and has no intention on extending it, adding that it was only written in Language of Country B and never translated into his native language. He further added that he was claiming the amount of “EUR 24,360” as “per match” salary and requested the payment to be made within five days.

15. On 11 July 2013, the club firmly reiterated that the expiry date of the contract is 31 May 2014. It stated that it was not the first time that the player had “breached the contract loyalty principle” and it reminded the player that in light of a decision of a board meeting held on 27 July 2011, due to the player “not participating in our preseason preparations and trained with another club without permission and information of our club, he has returned to City M with delay and stated that he will not participate in trainings and not undergo medical examinations” he shall be fined EUR 54,000. This fine was allegedly notified to the Football Federation G and has not been paid by the player.

16. On 3 August 2013, the player signed a contract with the Club of Country F, Club E (hereinafter: Club E or Respondent 2) valid until 30 June 2015. Said contract provides for the payment of a total of USD 400,000 for the “first year” with USD 50,000 payable upon signing the contract, and the remaining amount due in 10 monthly salaries, i.e. USD 35,000. The contract provides for the payment of USD 400,000 for the “second year” under the same conditions, with USD 50,000 due by no later than 1 August 2014.

17. On 22 October 2013, the club lodged a claim in front of FIFA against the player and his new club, Club E claiming compensation for breach of contract without just cause in the amount of 3,000,000 or “EUR 1,107,054”, as well as the payment by the player of EUR 29,640, the reimbursement of legal fees and the imposition of sporting sanctions on the player and his new club Club E.

18. The club argues that in light of the Football Federation G Regulations, and in particular the Circulars, there was a limitation during the 2010/11 season whereby clubs could only sign three foreigners who are born on or after 1 January 1987 and the ending date of the employment contracts is 31 May 2013 at the latest. In this regard, the club states that it was a given that for the 2011/12 season the limit of expiry of the contracts would be 31 May 2014. The club argues that in light of the fact that there was a software problem with the registration platform of the Football Federation G, it requested that the second contract be registered until 31 May 2013 before making a modification during the season to ensure that the alleged correct date, i.e. 31 May 2014, was registered on the Football Federation G software platform. It claims that despite the change of the expiry date of the second contract registered with the Football Federation G, made only in light of the software problems of the Football Federation G, all other conditions relating to salary payments for 2013/14 remained intact, indicating that it is clear that contract was set to expire on 31 May 2014.

19. For this reason only, the club made a request to the Football Federation G to modify the term of the contract on its database. The club was therefore surprised to receive a notice in which the player states that the contractual relationship between the parties clearly ended on 31 May 2013.

20. The club argues that it is clear that the second contract was due to expire on 31 May 2014, that the registration with the Football Federation G was erroneously made to expire on 31 May 2013 only because of the software problems, and that consequently the player is in breach of contract by refusing to re-join the team for preseason.

21. The club states that it had fined the player, had communicated said fine to him in 2011, and requested to be paid the amount of EUR 54,000. It considers that the player had initially sought to breach his employment relationship with the club on 1 June 2011 and that this date should be considered to be the date of breach. The club asserts that the player had been training with the Club of Country N, Club O in 2011. In this regard, a letter dated 7 June 2011 addressed to the club by Club O sought to clarify that due to the agent’s misrepresentation of facts, the player had joined Club O to train. In said correspondence Club O states that it considers “the mater as being solved and (…) thankful that there has been established a truthful and honest relationship between the club (sic.)”.

22. In his reply to the claim on 30 October 2014 the player states that he has not signed any contract which would expire on 31 May 2014 and also states that the contract provided by the club has been falsified, claiming that none of the pages of the contract submitted by the club carries the signature of the player. In this regard, the player submitted a contract and its translation on which his signature appears on each page of the Version in Language of Country B. Consequently, the player deems that the claim should be rejected on the basis that it was based on a falsified document. He indicates having relied on the contract registered with the Football Federation G, which was set to finish on 31 May 2013.

23. The player further states that even if his signature does appear on the document, he had no intention of extending his contract. He further explains that in accordance with “Article 14 of the ‘Registration Application’ of the Instruction by the Football Federation of Country B on Status and Transfers of Professional Football Players” the player should have signed a document indicating his will to extend his contract. He asserts never having signed such a document. In addition, he claims that the extension of the contract is contrary to the Regulations which provide that the maximum duration of a contract is of five years, which allegedly gives him the right to terminate the contract unilaterally in any case.

24. The player notes that the second contract contains a document of the Football Federation G which contains the indication of “this contract has been approved and registered by the Football Federation G on 29.10.2010”.

25. In addition, the player claims that in light of having played nine matches, he is owed “EUR 26,360” as outstanding remuneration as well as legal fees relating to the present matter on the basis of the second contract. In this regard, the player claims to have been owed EUR 82,320 as per match payments and acknowledges the payment of EUR 55,960 during the course of the 2012/2013 season, and after having remade the calculation of monies owed to him, claims the remaining sum of “EUR 26,320”.

26. The player claims that the club unilaterally requested the Football Federation G to extend the date of termination of the employment contract until 31 May 2014, allegedly without the player’s consent or knowledge. In addition, he considers that the club did not submit the contract within the correct time-frame established by the Football Federation G. The player states that according to the Football Federation G a contract must be submitted for registration within the transfer and registration period during which the contract was signed, so would have to have been submitted for registration before 1 September 2011, but the club only made the request on 31 May 2012.

27. In reply to the claim, Club E stated that it had duly signed an employment contract with the player on 4 August 2013 and claims that the player had contacted the club through his representatives stating that he was a free player. The club further states that it requested full documentary evidence that the player was a free agent. The representatives of the player allegedly sent a screenshot of the website of the Football Federation G which indicated that the contract between the player and the club was “dissolved”, and that the end date mentioned was 31 May 2014. Club E therefore requested confirmation from the Football Federation G which replied on 9 July 2013 stating that the “procedure of termination, performed by you [the player] has been registered in our records, and upon termination notification, the agreement between the parties, i.e. between the player and the club, has been ended”. Club E states that it was only after it received what it considers to be an official confirmation from the Football Federation G that it started negotiations with the player.

28. Club E duly proceeded with the registration of the player via the Transfer Matching System (hereinafter: TMS). It also indicated that throughout the entire period of negotiations with the player, it had not received any notification from the club. It also stated that the contract it had signed with the player was mutually terminated on 1 September 2014.

29. In its replica, the club states that the argument of the player relating to the maximum duration of contracts cannot be upheld, notably since the first contract was signed for a duration of three years, and the second contract was signed for a duration of four years. In this regard, the club notes that the second contract was signed when the first contract was still set to run for another 6 months. Therefore, adding the 6 months remaining on the first contract to the four years of validity of the second, the total duration is only four and half years, which “is legal”. Furthermore, the club refers to art. 20 par. 3 of the Football Federation G Regulations on the Status and Transfer of Players “During the term of registration of the new contract signed with the present Club, the remaining period of the current contract is taken into account with the new contract and in case the total duration exceeds five year (sic.), then the non-exceeding period of the contract is registered. Nevertheless, in case the current contract terminates at the end of the season, then the five year contract with the new club is registered”.

30. The club notes that the contract contains provisions of contractual salaries for the 2013/14 season, which was inserted in consideration of the fact that the contract was allegedly to last until the end of the 2013/14 season, but could only be registered as being until the end of the 2012/13 season.

31. The club claims that the player intended to have the contract last until the end of the 2013/14 season, and in light of this, the parties had signed a “third employment contract” on 15 July 2011 valid until 31 May 2014. The club indicates that after having made the valid request to the Football Federation G to modify the date of expiry of the second contract to 31 May 2014, the Football Federation G website demonstrates that the contract renewal was set to last until said date and consequently, the there was no need to submit the third contract to the Football Federation G for registration.

32. In addition, the club provides a French version of the second contract which it states was signed on “29 November 2010” which was valid from 1 June 2011 until 31 May 2014.

33. With regard to the player’s claim that there are outstanding “per match” payments due to him, the club demonstrates having made payments totalling EUR 55,960 in this regard, but acknowledges a debt of EUR 24,360 toward the player. In light of the fine imposed on him on 27 July 2011 of EUR 54,000, the club claims to be owed EUR 29,640.

34. The club further indicates that the document of 9 July 2013 submitted by Club E does not indicate whether the termination made by the player was with or without just cause. In this regard, the club explains that in Country B, when a player wishes to terminate the contract, he has to send the notification to the Football Federation G, who, upon receipt registers the termination and informs the parties that the contractual relationship has ended. It acknowledges that Club E may have reasonably come to the conclusion that the player was a free agent, but the document provided does not ensure it.

35. In its final comments, Club E indicated that it is clear that it was not able to have any relation to the dispute in light of the elements on file. It adds that the contract with the player was terminated by mutual consent in August 2014 and requests that the claim lodged against it should be rejected.

36. In spite of having been invited to do so, the player did not submit his final position in reaction to the reply of the club.

37. After having been invited by the FIFA administration to provide it with original copies of each of the allegedly signed contracts, the player indicated that he was not in possession of any original document. The club, for its part, submitted original versions of each contract, from which it appears that a contract was signed and valid until 31 May 2014 and was amended so the end date reads “31 May 2013”, and the player’s signature is affixed next to each modification.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 22 October 2013. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (2016 edition) 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 Club of Country B and a Player of Country D and an Club of Country F.

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 (2016 edition), and considering that the present claim was lodged on 22 October 2013, the 2012 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 Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the aforementioned facts as well as the arguments and documentation submitted by the parties. The Chamber, however, 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 according to the club, the second contract signed with the player was in principle supposed to be valid until 31 May 2014, however in light of the Football Federation G Regulations and in particular the Football Federation G Circulars, the player, as a foreigner, could only be registered until 31 May 2013 and such modification was added to the contract and communicated to the Football Federation G. In the course of the season, the club requested the modification of the registration date of the player with the Football Federation G to match the alleged original expiry date of the contract, i.e. 31 May 2014. The DRC noted that the club considered the player to be in breach of contract by not returning for pre-season 2013/2014 and signing a new employment contract on 3 August 2013 with the Club of Country F, Club E, and therefore claimed that the player and Club E should pay it compensation amounting to 3,000,000 or EUR 1,107,054, in addition to EUR 28,640 as remuneration paid in excess, the payment of legal fees and the imposition of sporting sanctions.

6. The members of the Chamber noted on the other hand that the player asserts never having signed a contract which was set to last until 31 May 2014, contesting its validity and stating that it had been falsified. He claims to have been a free agent after the expiry of his contract with the club on 31 May 2013 and therefore entitled to enter into a new employment relationship with Club E. The DRC noted that the player lodged a counterclaim against the club for outstanding remuneration amounting to EUR 26,320 as well as the reimbursement of legal fees.

7. In consideration of the above, the Chamber highlighted that the underlying issue of the present dispute, notably considering the conflicting positions of the parties, was to determine which employment contract should be considered valid in order to determine whether or not the relevant contract had been breached. The DRC subsequently underlined that if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that is to be held to be liable for the breach of the employment contract without just cause.

8. The members of the Chamber further noted that in light of the conflicting opinions relating to the duration of the contract at the basis of the present dispute and the allegations of the player that the contract set to expire on 31 March 2014 was a falsification, the FIFA administration requested each of the parties to provide it with originals of the relevant documentation. In this regard, the DRC took note that the player stated that he was not in possession of any original version of any of the contracts.

9. In continuation, the Chamber noted that the club had submitted to FIFA’s administration both the version of the contract set to end on 31 May 2013 as well as the contract set to end 31 May 2014. In light of the underlying issue at the basis of the present dispute, i.e. what was the date on which the contractual relationship established between the parties was set to finish, it had to thoroughly analyse the original versions of the documents submitted by the club.

10. At this stage, the Dispute Resolution Chamber considered it appropriate to recall that as a general rule, FIFA’s deciding bodies are not competent to decide on matters of criminal law, such as ones of alleged falsified signatures or documents, and that such affairs fall under the jurisdiction of the competent national criminal authorities.

11. Nevertheless, the DRC recalled that all documentation remitted within the scope of an investigation shall be considered with free discretion and, therefore, the members focused their attention on the two contracts as well as the documents containing the player’s signature, which were provided by the parties in the context of the present dispute.

12. In this regard, after a thorough analysis of the aforementioned documents, it appears clear that the player and the club had signed an employment contract valid until 31 May 2014 which had been amended so the end date inscribed on the document reads “31 May 2013”, with the player’s signature affixed to each of the contract’s modifications. In particular, the members of the DRC noted that in one of the original contracts provided by the club, the end date had been erased with Tipp-Ex and new end date, namely 31 May 2013, appears to have been stamped over it. If one checks the back of the relevant page, it is possible to see that the original contract bore the end date of 31 May 2014. The Chamber, therefore, unanimously agreed that the contract ending 31 May 2013 is the document that was signed after the one ending on 31 May 2014, or rather that the end date was later on modified from 31 May 2014 to 31 May 2013, and that such specific modification had been agreed upon by the player, who put his signature just beside the new end date, consenting to this modification of the original terms of the agreement. Thus, on the basis of the legal principle of novation, the contract ending on 31 May 2013 is the contract considered to be valid in the present matter.

13. Consequently, on the basis of the aforementioned considerations, the Chamber deemed that the player, in good faith, relied on the latest contract signed between the parties, with the specific modification of its end date to 31 May 2013. Therefore, the DRC considered that the contractual relationship linking the parties came to an end on 31 May 2013, and consequently, that the claim of the club that the player had breached the employment contract by not attending the 2013/2014 pre-season training should be rejected since any contractual obligation deriving from the contract had already ceased.

14. In continuation, the members of the Chamber turned their attention to the counterclaim of the player, on the basis of which the latter claimed EUR 26,320 in outstanding remuneration in relation to “per match” payments as well as the reimbursement of legal fees. With regard to the “per match” payments and bearing in mind the content of art. 12 par. 3 of the Procedural Rules, the DRC took due note that from the evidence on file, it can be established that the player had played in 28 of 34 matches, which would entitle him to bonuses amounting to EUR 82,320, i.e. 28 matches à EUR 2,940, in which he played and started during the 2012/2013 season (cf. point I.3.c above).

15. In this regard, the DRC took due note that in relation to the counterclaim of the player, the club had asserted that it had made transfers to the player relating to “per match” payments in the total amount of EUR 55,960 (cf. point I.33 above), which the player acknowledges (cf. point I.25 above). What is more, the club acknowledged a debt owed to the player in the amount of EUR 24,360 (cf. point I.33 above) but asserted that it had imposed a fine on 27 July 2011 on the player of EUR 54,000, meaning that the club should still be paid EUR 29,640 by the player.

16. In continuation, with particular regard to the imposition of a fine, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to offset outstanding financial obligations towards players. Consequently, the members of the Chamber decided to reject the Respondent’s argument in this regard.

17. Therefore, as a consequence of the aforementioned considerations and taking into account the documentation presented by the parties to the dispute, the Chamber established since the player was entitled to EUR 82,320 in “per match” payments which had fallen due, and that the club acknowledged and provided evidence of having paid him only EUR 55,960, as confirmed by the player, the amount of EUR 26,360 remains outstanding up to today.

18. Consequently, in line with the general legal principle of pacta sunt servanda, the Chamber decided that the counterclaim of the player is accepted and the club is liable to pay to the player the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 26,320 as “per match” payments, as the player limits his counterclaim to this amount in point I.25 above.

19. In continuation, and with regard to the claimed legal expenses, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its longstanding and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the club’s request relating to legal expenses.

20. The Chamber concluded its deliberations by rejecting the claim of the club and by accepting the counterclaim of the player.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Club A, is rejected.

2. The counterclaim of the Respondent 1 / Counter-Claimant, Player C, is accepted.

3. The Claimant / Counter-Respondent has to pay to the Respondent 1 / Counter-Respondent the amount of EUR 26,320 as outstanding remuneration, within 30 days as from the date of notification of this decision.

4. In the event that the aforementioned sum is not paid by the Claimant / Counter-Respondent 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

5. The Respondent 1 / Counter-Claimant is directed to inform the Claimant / Counter-Respondent 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. 58 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

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives