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 the Dispute Resolution Chamber passed in Zurich, Switzerland, on 16 October 2014, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Todd Durbin (USA), member Joaquim Evangelista (Portugal), member John Bramhall (England), member on the claim presented by the club, Club W, from country M as Claimant against the player, Player T, from country S as Respondent I and the club, Club M, from country I as Respondent II 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 the Dispute Resolution Chamber passed in Zurich, Switzerland, on 16 October 2014, in the following composition: Geoff Thompson (England), Chairman Damir Vrbanovic (Croatia), member Todd Durbin (USA), member Joaquim Evangelista (Portugal), member John Bramhall (England), member on the claim presented by the club, Club W, from country M as Claimant against the player, Player T, from country S as Respondent I and the club, Club M, from country I as Respondent II regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 9 August 2006, Player T, from country S (hereinafter: the Respondent I), and Club W, from country M (hereinafter: the Claimant), signed an employment contract (hereinafter: the contract), valid for 5 years as from the date of signature. 2. According to art. 4 of the contract, the Claimant undertook to provide the Respondent I, inter alia, with the following: a) a sign-on bonus of USD 10,000, from which USD 1,800 are to be deducted and paid to Respondent I's agent; b) a monthly salary equivalent to USD 1,100, from which USD 3,200 are to be paid to the Respondent I’s agent on 1 September 2007 and 1 September 2008, in 2 equal instalments of USD 1,600. 3. In addition, the Claimant and the Respondent I agreed upon “art. 6. Any dispute shall be settled amicably between the two parties; if no solution is possible; it shall be submitted to arbitration in front of the country M Football Federation and possibly of FIFA.” 4. On 6 January 2010, the Claimant lodged a claim for breach of contract in front of FIFA against the Respondent I and Club M, from country I (hereinafter: the Respondent II), requesting, after amending its original claim: a) compensation for breach of contract in the amount of EUR 750,000; b) sporting sanctions against the Respondent I and the Respondent II. 5. In its claim, the Claimant explains that it loaned the Respondent I to the country I club, Club P, for the season 2008/2009 and found that the Respondent I did not return to the Claimant for the 2009/2010 season and, instead, was playing with the Respondent II. 6. As to the damages to be compensated by the Respondent I and the Respondent II, the Claimant contends that “both the contract signed with [the Claimant] and the contract signed with [the Respondent II] should be taken into consideration in the calculation of the amount of compensation.” 7. In his reply, the Respondent I denies having breached the contract with the Claimant when he signed with the Respondent II in the summer of 2009. Furthermore, he claims that the Claimant neither provided any proof of the existence of a possible refusal to issue the relevant international transfer certificate (ITC) nor of the communication of its reasons to justify its opposition to the issuance of said ITC. 8. Likewise, the Respondent I asserts that the Claimant failed to comply with art. 6 of the contract because it never contacted him to amicably solve the present dispute since the summer of 2009, in spite of knowing that he was playing with the Respondent II. 9. In its reply, the Respondent II states that it signed an employment contract with the Respondent I “based on the documents demonstrating that he was a free player” and acknowledges having signed two employment contracts with the Respondent I, the first one on 28 May 2009 and the second one on 21 July 2010. 10. The Respondent II further affirms that it employed the Respondent I in accordance with the ITC issued by the country I Football Federation dated 10 October 2007, which stated that the player was “free to pursue sports activities”. 11. In its replica, the Claimant indicates that the Respondent I did not contest the fact that he breached the contract and that he does not have the intention to amicably solve the present dispute. Therefore, FIFA is competent to decide the dispute among the parties. 12. Furthermore, the Claimant claims never having being contacted by the country M Football Federation regarding the issuance of an ITC for the transfer of the Respondent I to the Respondent II. In connection with the ITC submitted by the Respondent II, the Claimant affirms that such ITC, by no means, demonstrates that the Respondent I was free. 13. Finally, the Claimant informs that the Respondent I was transferred to Club N in January 2012 for an amount of EUR 1,000,000 and, subsequently, in August 2013 to Club A for EUR 3,750,000. 14. In his final comments, the Respondent I reiterates his position and arguments. In case the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) declares itself competent to deal with the present case, the Respondent I contends that he was free to sign with the Respondent II, as the documentation provided by the Respondent II indicates. The Respondent I alternatively contends that, in case the DRC decides that he terminated the contract without just cause, it should also consider that the termination occurred after the protected period. In connection with the amount of an eventual compensation, the Respondent I sustains that the elements the DRC should take into consideration for its calculation are the following: a) global remuneration under the contract is USD 76,000; b) the Claimant did not pay any transfer compensation for the Respondent I. 15. The Respondent I notes that, in any case, the transfer compensations paid for his transfers in 2012 and 2013 (cf. point I.13. above) should not be taken into consideration for the calculation of any compensation, due to the fact that those transfers occurred after the validity of the contract allegedly breached by him. 16. The Respondent I further states that the Claimant failed to produce any evidence in connection with any transfer offer related to him in order to enable the DRC to calculate his market value at the time of the alleged breach of the contract. 17. In its final comments, the Respondent II reiterates its position and arguments. 18. Finally, the Respondent I informed FIFA that he signed the following new contracts with: a) the Respondent II in country I, for USD 269,000 during the season 2009-2010. b) the Respondent II in country I, for USD 650,000 during the season 2010-2011. c) Club C, from country U, from 1 July 2011 until 31 May 2012, for USD 1,000,000. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber 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 6 January 2010. Consequently, the 2008 edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 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 2014), the DRC would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a country M club, on the one hand, and a country S player and an country I club, on the other hand. 3. However, the Chamber acknowledged that the Respondent I contested the competence of FIFA’s deciding bodies on the basis of art. 6 of the contract (cf. point I.3. above), arguing that the Claimant failed to comply with such article because it never contacted him to amicably solve the present dispute. 4. In this regard, the Chamber noted that the Claimant rejected such position and insisted that FIFA has jurisdiction to deal with the present matter. 5. In continuation, the DRC referred to the above-mentioned article 6 of the contract, on the basis of which the Respondent I contested FIFA's jurisdiction. According to said article, “any dispute shall be settled amicably between the two parties; if no solution is possible; it shall be submitted to arbitration in front of the country M Football Federation and possibly of FIFA.” 6. Hence, the Chamber outlined that the relevant article explicitly refers to FIFA and does not specify any pre-arbitration action. Therefore, the Claimant did not have to follow any specific procedure to amicably settle the present dispute before lodging his claim and the DRC concluded that it is competent, on the basis of art. 6 of the contract and art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 7. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2014), and considering that the present claim was lodged on 6 January 2010, the 2009 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 8. 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. 9. The members of the Chamber acknowledged that it was undisputed by the parties that the Claimant and the Respondent I were contractually bound by means of the contract concluded between them, valid as from 9 August 2006 until 9 August 2011. Likewise, the DRC also noted that the parties did not dispute the fact that on 28 May 2009 the Respondent I signed an employment contract with the Respondent II, valid for the season 2009/2010, and that on 21 July 2010 the Respondent I signed a second employment contract with the Respondent II, valid for the season 2010/2011. 10. The Chamber further noted that the Claimant, on the one hand, lodged a claim against the Respondent I and the Respondent II for breach of contract and inducement to breach, respectively, arguing that the Respondent I failed to return after his loan for the season 2008/2009 and, instead, was playing with the Respondent II at the beginning of the season 2009/2010. 11. The Chamber also noted that the Respondent I and the Respondent II, on the other hand, maintain that the Respondent I was free to sign the two employment contracts entered into between them, the first one on 28 May 2009 and the second one on 21 July 2010. 12. The DRC highlighted that the central issue in the matter at stake would be, thus, to determine as to whether the Respondent I had breached the contract concluded on 9 August 2006 with the Claimant without just cause, as alleged by the Claimant. 13. At this point, the Chamber deemed it appropriate to remind the parties of the wording of art. 12 par. 3 of the Procedural Rules, according to which: “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”. 14. In this context, the Chamber referred to the parties’ respective statements (cf. inter alia, points I.7., I.9 and I.18. above) and, on the one hand, the contract signed with the Claimant and, on the other hand, the employment contracts signed between the Respondent I and the Respondent II, which may all be found on file. The members of the DRC underlined that, after analysing such contracts, it could be concluded that the Respondent I signed two employment contracts with the Respondent II covering the same period of time as the contract signed with the Claimant. 15. Given these circumstances, the Chamber recalled that, according to art. 18 par. 5 of the Regulations, if a professional enters into an employment contract with different clubs for the same period of time, the provisions of Chapter IV of the Regulations regarding the maintenance of contractual stability between professionals and clubs shall apply. 16. In this respect, the members of the DRC pointed out that the only situation in which a player is entitled to enter into two employment contracts for the same period of time is whenever the player transfers on loan to a third club. However, the Chamber stressed that this is not the case in the present dispute. 17. Based on the foregoing, the Chamber concurred that the Respondent I had, in principle, acted in breach of the contract concluded with the Claimant, by signing a new contract with the Respondent II, while his former contract with the Claimant was still valid and binding. 18. Notwithstanding the foregoing, the Chamber went on to analyse the argumentation put forth by the Respondent I and the Respondent II in their favour. In connection with the defence raised by the Respondent I and the Respondent II regarding the alleged condition of the Respondent I as free to have signed the employment contracts with the Respondent II, the Chamber noted that said allegation is based on art. 5.4 of the employment contract entered into between the Respondent I and the country I club, Club P, which provides that “the player confesses that he has not sign any similar contract with any club inside or outside country I” (cf. point I.9. above) and an ITC dated 10 October 2007 (cf. point I.10. above). 19. The DRC concluded that the aforesaid allegation cannot be sustained because, in first place, the employment contract entered into between the Respondent I and Club P, on a loan basis, was valid for the season 2008/2009 so that neither the Respondent I nor the Respondent II may validly state that the Respondent I was free to sign an employment contract for the season 2009/2010 or a later season based on a statement made in a contract signed on a loan basis, which was in force during a previous season. 20. Secondly, the Chamber took due note that the ITC submitted by the Respondent II is dated 10 October 2007 and apparently served the purpose of transferring the Respondent I on loan to a different previous club and not to the Respondent II pursuant to the first employment contract signed between the Respondent I and the Respondent II, which was entered into almost two years later, on 28 May 2009. 21. Based on the foregoing, the DRC established that, in accordance with art. 17 par. 1 of the Regulations, the Respondent I is liable for the termination of the contract with the Claimant without just cause and, consequently, must pay an amount of compensation to the Claimant. Furthermore, in accordance with the unambiguous contents of article 17 par. 2 of the Regulations, the Chamber established that the Respondent I’s new club, i.e. the Respondent II, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber recalled that according to art. 17 par. 4 sent. 2 of the Regulations, it shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach. 22. Having stated the above, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly reiterated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular the remuneration and other benefits due to the Respondent I under the existing contract and/or the new contracts, the time remaining on the existing contract up to a maximum of five years as well as the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within the protected period. The DRC recalled that the list of objective criteria is not exhaustive and that the broad scope of the indicated criteria tends to ensure that a just and fair amount of compensation is awarded to the party which suffered the damage. 23. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the Claimant and the Respondent I had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 24. As a consequence, the members of the Chamber determined that the amount of compensation payable to the Claimant in the present matter had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. In this regard, the DRC emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis, taking into account all specific circumstances of the respective matter. 25. Consequently, in order to estimate the amount of compensation due to the Claimant in the present case, the Chamber turned its attention to the remuneration and other benefits due to the Respondent I under the contract and the new contracts, which criterion was considered by the Chamber to be essential. In this context, the members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to take into consideration both the contract and the new contracts in the calculation of the amount of compensation, thus enabling the Chamber to gather indications as to the economic value attributed to a player by both his former and his new club. 26. In this regard, the DRC established, on the one hand, that the employment contract between the Claimant and the Respondent I had been set to run as from the 9 August 2006 until 9 August 2011. Since the breach occurred on 28 May 2009, i.e. the date of signature of the first employment contract between the Respondent I and the Respondent II, the total value of his employment agreement with the Claimant for the remaining contractual period amounts to USD 28,600 (cf. point I.2.b) above). On the other hand, the members of the Chamber established that the value of the new employment contracts concluded between the Respondent I and the Respondent II proportionally amounts to a total of USD 995,583 for the period starting from the unilateral termination of the contract by the Respondent I until its contractual expiry, i.e. from 28 May 2009 until 9 August 2011 (cf. point I.18. above). On the basis of the aforementioned financial contractual elements, the Chamber concluded that the average of remuneration between the contracts concluded by the Respondent I respectively with the Claimant and the Respondent II over the relevant period amounted to USD 512,092. 27. Having stated the above, the DRC recalled that the remuneration paid by the Respondent II to the Respondent I is particularly relevant insofar as it reflects the value attributed to his services by his new club at the moment the breach of contract occurs and possibly also provides an indication towards the Respondent I’s market value at that time. In this regard, the DRC took due note that the Respondent I appeared to have increased his income considerably by concluding an employment contract with the Respondent II. 28. Consequently, on account of the above-mentioned considerations, the Chamber decided that the Respondent I must pay the amount of USD 512,092 to the Claimant as compensation for breach of contract. Furthermore, the Respondent II is jointly and severally liable for the payment of the relevant compensation (cf. point II.21. above). 29. For the sake of completeness, the Chamber finally referred to the Claimant’s argument according to which the breach of contract by the Respondent I had occurred within the protected period. In this regard, the Chamber referred to item 7 of the “Definitions” section in the Regulations and pointed out that according to the duration of the season 2008/2009 in country M –from 20 June 2008 until 31 January 2009 as per TMS–, the breach occurred after the end of the third season of the Respondent I’s contract with the Claimant, i.e. on 28 May 2009 (cf. point II.26. above), and, in any case, outside the protected period. 30. Moreover, in consideration of the entire circumstances of the matter at hand, in particular the timeline of events as well as the difference in remuneration between the contract and the employment contracts signed with the Respondent II, the Chamber deemed that it had no other option but to consider that the reason for which the Respondent I acted in breach of the contract was the fact that he had entered into an employment relationship with the Respondent II. 31. In conclusion, the DRC decided that the claim of the Claimant is partially accepted and that the Respondent I has to pay to the Claimant USD 512,092, as compensation for the unilateral termination of the contract without just cause. In this respect, the DRC also determined that the Respondent II is jointly and severally responsible for the payment of the above-mentioned amount of compensation to the Claimant. 32. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Club W, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent I, Player T, is ordered to pay to the Claimant compensation in the amount of USD 512,092, within 30 days as from the date of notification of this decision. 4. The Respondent II, Club M, is jointly and severally liable for the payment of the aforementioned compensation. 5. In the event that the amount due to the Claimant in accordance with numbers 3. and 4. above is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 6. Any further claims lodged by the Claimant are rejected. 7. The Claimant is directed to inform the Respondent I and the Respondent II immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Jérôme Valcke Secretary General Encl.: CAS directives