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 Decision of the Decision of the Decision of the Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 19 February 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Joaquim Evangelista (Portugal), member Theodore Giannikos (Greece), member on the claim presented by the club, Club A, country B as Claimant against the player, Player C, country B & country D as first Respondent and the club, Club E, country D as second Respondent 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 Decision of the Decision of the Decision of the Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 19 February 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Joaquim Evangelista (Portugal), member Theodore Giannikos (Greece), member on the claim presented by the club, Club A, country B as Claimant against the player, Player C, country B & country D as first Respondent and the club, Club E, country D as second Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. According to the club from country B, Club A (hereinafter: Club A or the Claimant), it signed the following three employment contracts with the player Player C (hereinafter: the player or the first Respondent): Date of signature Duration contract Salary 25 May 2009 1 June 2009 – 30 May 2010 5,000 per month 26 May 2010 1 June 2010 – 31 May 2011 8,000 per month 31 December 2011 31 December 2011 – 30 May 2016 8,000 per month, i.e. for a total value of 424,000 (53 x 8,000). 2. The contract dated 31 December 2011 further states that the player “gets bonuses in the form of: housing allowance, transportation allowance, rewards, flight tickets and other bonuses (settled by the two parties.)” 3. On 26 January 2012, the player signed an employment contract with the club from country D, Club E (hereinafter: Club E or the second Respondent) valid for 4 months in accordance with which he would earn a gross monthly salary of 15,248 as well as 1,749 per point, limited to a maximum of 20 points. 4. On 26 April 2012, Club A lodged a claim against the player and Club E in front of FIFA alleging that the player had terminated the contract signed on 31 December 2011 without just cause by concluding a contract with Club E on 26 January 2012. As a result, Club A requested the payment of 1,272,736 as compensation for breach of contract plus interest as well as sporting sanctions and CHF 45,000 as legal costs. 5. In its claim, Club A explained that it had paid the player: - 7,675 “in advance” in cash between 13 November 2011 and 13 January 2012; - USD 9,500 as rent on 15 January 2012; - 5,700 “in advance” by check on 20 January 2012. 6. Club A further explained that, prior to the signing of his first contract with Club A in May 2009, the player was registered with the amateur club from country D, Club F. According to Club A, due to the political situation between country B and country D there are no official relations between the Football Association from country D and the Football Association from country B, reason for which, as is allegedly common, no International Transfer Certificate (ITC) was issued between said associations. Club A stressed that it did however receive the Football Association from country B’s approval for the registration and consequently registered the player with the Football Association from country B in May 2009. 7. Also, Club A stressed that despite the fact that 32 months had passed since the player’s last game within Football Association from country D and notwithstanding that according to the FIFA Regulations after 30 months a player’s registration is terminated, Club E claimed in the media in country D, and in bad faith, that for the last 32 months the player was registered with the club from country D, Club G. 8. Furthermore, according to Club A, the player played 3 matches under the contract dated 31 December 2011, after which he left to Club E claiming that he never signed said contract. 9. Finally, Club A claimed that on 25 January 2012, it informed Club E about its contract with the player. 10. In reply to the claim, the player and Club E (hereinafter together: the respondents) emphasized that the player never signed the contract dated 31 December 2011 and that his signature on said contract is forged. The player questioned why he would breach a contract of 4,5 years to sign a contract with another club for only 4 months. Equally, the player stressed that the first two contracts were valid for 1 year only, that after the expiry of the second contract the club did not offer him an extension and that it would thus be illogical to believe that, after Club A did not want him anymore in May 2011, it suddenly wanted to sign a contract with him for 4,5 years in December 2011. 11. Upon request, the alleged original version of the contract dated 31 December 2011 was sent by the Football Association from country B to FIFA. Also, Club A provided pictures of the player apparently signing a contract and wearing its shirt, allegedly taken on 31 December 2011. 12. In this context, the respondents organized a handwriting examination in Zurich following which the expert appointed by them concluded that the player’s signature on the contract dated 31 December 2011 was forged. 13. Furthermore, the respondents pointed out that Club A and the Football Association from country B never requested the player’s ITC and, as such, had shown a complete disrespect to the FIFA Regulations. The statement that no official relations exist between the Football Association from country D and the Football Association from country B is completely groundless and, even if at a certain moment the Football Association from country B would have decided not to maintain any relations with the Football Association from country D, this cannot be considered as a valid reason to derogate from the duty to request the ITC. 14. The respondents further clarified that the player was in the 2001/2002 season a player of Club G and thereafter an amateur with Club E until the end of the 2007/2008 season. In the 2008/2009 season, the player was registered as a professional with Club E and, in the same season, first loaned to Club H as an amateur and then subloaned to Club F where he played until the end of the 2008/2009 season. Thereafter, the registration returned to Club E and the player was transferred to Club G on a definitive basis where he was registered on 10 September 2009 as an amateur. The player remained registered with Club G between the 2008/2009 and 2011/2012 season, until he was duly transferred to Club E at the end of January 2012. 15. In this context, the respondents held that in accordance with art. 5.2 of the FIFA Regulations on the Status and Transfer of Players, a player may only be registered with one club at the time and outlined that when the player was registered with the Football Association from country B, he was already registered with the club from country D, Club G. Therefore, the legal consequence is that Club A had no legitimate right to register the player and it severely disrespected the FIFA Regulations. The respondents held that, as a result, the non-validity of the registration affects the contract between Club A and the player, making it invalid. 16. While the player acknowledged that he was playing with Club A until the end of the 2010/2011 season, he underlined that the contract was not extended, reason for which he started playing in the 2011/2012 season with the club from country B, Club Q. The player played 8 matches for Club Q, was paid nothing and had no contract and therefore decided to leave Club Q. Then, the player did not train or play for two months until Club A asked him to return, however he did not sign any contract. Around November 2011, he started playing again for Club A under the clear agreement that if he would find a new club he would be free to leave, which happened when Club E offered him to return in January 2012. According to the player, he accepted the offer and immediately informed the coach of Club A of his intention to join Club E. Finally, the respondents stated that since the player remained registered with the Football Association from country D, no ITC was required. 17. Moreover, the player rejects that he received any amount other than the 5,700, which was only paid because at the time he joined Club A he was told that he may be paid some amounts at the discretion of Club A. Equally, the player stated that he never received the USD 9,500; there is no signature on the document and the document confirms it was paid to a certain Mr Z. 18. In the alternative, the respondents argue that Club A’s request for compensation should either be rejected or limited to 140,000 for the following reasons: i) The contract with Club E was only valid for 4 months and no new contract was offered after those 4 months; ii) The average basic salary between the two contracts amounts to 11,624; iii) When the player returned to Club A he only received an amount of 5,700; iv) Both Club A and Club E are clubs with a similar status; v) Club A did not prove any real sportive damages; vi) The amount claimed is excessive corresponding to 159 salaries of the player. 19. Finally, Club E argued that it should not be liable to compensate Club A since it did what it had to do when they contracted the player; Club E checked with the Football Association from country D about the status of the player and was informed that he was registered with the Football Association from country D as a player of Club G. Club E had no reason to believe that the player, apart from being registered with the Football Association from country D, was also registered with the Football Association from country B, since this is an impossible situation as a player cannot be registered with two associations. 20. In its replica, Club A stressed that the contract with the player is genuine and organized a handwriting examination in country D following which the expert appointed by it concluded that “all the signatures were made by the player”. 21. Moreover, Club A explained that it offered a 5-year contract to the player at the end of the 2010/2011 season, since the player was the best player in the club, a new born star of the country B national team and a significant talent. The player however refused to sign with Club A and instead signed with the wealthier club Club Q. When the player was at Club Q, the parties decided to split for reasons unknown to Club A, however, Club A immediately offered the player a contract and after a short period of negotiations, the contract dated 31 December 2011 was signed. Club A mentioned that Club E’s statement that it had the player playing with them without a contract is ridiculous, as this is against the law. Club A reiterated that the player played 3 matches for the club, received remuneration and by doing so validated the new agreement. 22. As to the reason why the player left, Club A stated that the player would earn with Club E “145,972” in 4 months which is almost equal to the amounts he would receive in 2 full seasons with Club A. Also, Club A insisted that 4 months in the country D league would guarantee his financial future, which turned out to be correct, since he signed a contract with Club J afterwards. 23. As to the player’s registration, Club A stressed that the Football Association from country D’s official online registration system does not mention any club with which the player was registered during the 2009/2010 and 2010/2011 season; he never played for Club G and never signed a contract with Club G. Club A also questioned why the Football Association from country D or Club G never sought the interference of FIFA if it believed the player belonged to Club G and holds that the player was playing with Club A under an official TMS registration. Club A states that the player even contradicts himself in his witness statement saying that he was contacted by Club A when he was playing for Club E and not for Club G. 24. Furthermore, Club A stated that it followed the FIFA Regulations when it registered the “released amateur player” within the Football Association from country B and that FIFA acknowledged the registration of the player in the Football Association from country B through the TMS. Also, even if the player was registered with Club G as from the end of the 2008/2009 season, his registration in the Football Association from country D was terminated 30 months later in accordance with art. 4.1 of the FIFA Regulations. 25. As to the financial part, Club A holds that, in accordance with the Football Association from country D Regulations, Club E received a large amount of compensation when the player was transferred to Club J and amended its claim to 3,105,692, calculated by adding the player’s salary with Club E to the “minimum current value” of the player in the amount of 1,500,000. 26. Finally, Club A insisted that all amounts were paid to the player including the rent which was paid to the owner of the player’s apartment. In this respect, Club A submitted a document signed by the Bank A. 27. In their duplica, the respondents reiterated their previous position, in particular regarding the player’s status at the end of the 2008/2009 season, and added that whereas a player can certainly leave a club when there is no contract in place, an ITC is still irrefutably required in order for a player to register and play in another association. 28. Furthermore, Club A’s argument that a player playing without a contract is against the law is completely at odds with the conduct of the Football Association from country B and Club A; the player has played with Club Q in precisely that scenario as evidenced by the lack of contract provided by Club A and also played in November and December 2011 for Club A without a contract. 29. As to the arguments why the player would prefer a 4 month contract in country D, the respondents indicated that these are pure speculations whilst emphasizing that the amounts earned with Club E are gross meaning that roughly 50% of the monthly salary would be deducted. Equally, the respondents state that the allegation that it received 1,500,000 from Club J is baseless. 30. As to the registration on the Football Association from country D website, the English version indeed does not show such information, but it does not do so for any information regarding the 2006/2007 season until the present. The version in the language of country D however does clearly show the registration of the player with Club G in the 2009/2010 and 2010/2011 season. Also, the fact that Club G did not seek for interference does not preclude Club A’s severe violation of the FIFA Regulations. 31. In addition, Club A’s statement that FIFA acknowledged the player’s registration through TMS is clearly false, since the registration took place in June 2009 when TMS did not even exist. 32. Finally, the respondents disputed the conclusion of Club A’s expert regarding the handwriting examination. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the 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 26 April 2012. 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. 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 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2014), 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 affiliated to the Football Association from country B, a player with a passport from country B and country D and a club affiliated to the Football Association from country D. 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, 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 in front of FIFA on 26 April 2012, the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, 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. Having considered all the argumentation put forward by the parties, the Chamber acknowledged that the first issue on which it had to decide was whether the player and Club A had in fact concluded an employment contract on 31 December 2011. The Chamber observes that whereas Club A holds that such contract had indeed been concluded with the player, the respondents vehemently deny that any such contract was concluded and allege that the player’s signature on the contract submitted by Club A is a forgery. 6. In this respect, the Chamber underlined that, upon request, it was provided with the alleged original version of the employment contract dated 31 December 2011. At this stage, the DRC considered it appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signatures or documents, and that such affairs fall into the jurisdiction of the competent national criminal authority. 7. In this regard, the DRC recalled that all documentation remitted shall be considered with free discretion and, therefore, it focused its attention on the alleged original document. The Chamber underlined that it had been provided with two conflicting expert reports regarding the handwriting examinations, reason for which the Chamber decided to give no weight to the handwriting examinations. 8. After a thorough analysis of the aforementioned documents, in particular, comparing the relevant signature and contract dated 31 December 2011 to the previous contracts, the DRC concluded that for a layman the player’s signatures on the various documents available, including the challenged employment contract dated 31 December 2011, seem to be alike and genuine. 9. In this context, the Chamber is well aware that the respondents question why a player would breach a contract of 4,5 years to sign a contract with another club for only 4 months and that it would be illogical to believe that, after Club A did not want the player anymore in May 2011, it suddenly signed a contract with him for 4,5 years in December 2011. The Chamber finds however that the explanations given by Club A in reply to these statements are not implausible or completely inconceivable. 10. In view of all of the above, and based on the documentation at its disposal, the DRC came to the conclusion that the employment contract dated 31 December 2011 is to be considered valid and shall, thus, be taken into consideration. As a result, the DRC concluded that the player and Club A had concluded an employment contract valid as from 31 December 2011 until 30 May 2016. 11. The direct consequence of the above-mentioned consideration is that the player, by signing a contract with Club E on 26 January 2012, signed two employment contract for an overlapping period of time and therewith breached his contract with Club A. As a result, the Chamber determined that the player terminated the contract with Club A without just cause on 26 January 2012. 12. In this framework, the DRC wished to clarify that all arguments raised in relation to the registration of the player and the ITC of the player do not have any effect on the validity of the contract between the player and Club A. Although the Chamber agrees with the respondents that in accordance with art. 9 par. 1 of the Regulations, a player registered at one association may only be registered at a new association once the latter has received an ITC from the former association, it is the well-established jurisprudence of the Chamber that the issuance of the ITC and the registration of a player are administrative formalities which cannot invalidate an employment contract. In other words, and bearing in mind art. 18 par. 4 of the Regulations, the Chamber considered that the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player. 13. Thus, the Chamber does not agree with the respondents that the registration affects the contract between a player and club, yet these circumstances may be taken into consideration when calculating the amount of compensation for breach of contract. 14. Consequently, having determined which party terminated the employment contract without just cause, the Chamber focused on the financial consequences of the termination of contract without just cause. The Chamber decided that, by unilaterally and prematurely terminating the employment contract with Club A without just cause, in accordance with article 17 par. 1 of the Regulations, the player is liable to pay compensation for breach of contract to Club A. 15. In continuation, the Chamber focussed 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 recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless 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 player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, 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. 16. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable 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. 17. As a consequence, the members of the Chamber determined that the amount of compensation for breach of contract in the present matter had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. Furthermore, the Chamber highlighted that each request for compensation for breach of contract has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter, as well as the Chamber’s specific knowledge of the world of football and its experience gained throughout the years. 18. Having said this, the Chamber turned its attention to the remuneration and other benefits due to the player under the existing contract and the new contract. The members of the Chamber deemed it important to emphasise that the wording of article 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and any new contract(s) 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. 19. In this respect, the Chamber noted that the remuneration of the player with Club A under the contract dated 31 December 2011 for the period as from February 2012 until May 2016 amounted to the total amount of 416,000, which corresponds to 52 monthly payments of 8,000. 20. Further, the Chamber observed that the player would earn with Club E the amount of 15,248 per month. Calculating the monthly remuneration of 15,248 over the same period of time that the player had a contract with Club A, i.e. 52 months, this amounts to 792,896. The average of the value of both contracts therefore amounts to approximately 600,000. 21. The Chamber continued by underlining that Club A had not provided any further conclusive evidence that could be taken into consideration by the Chamber when determining the value of the player. 22. The DRC therefore came to the conclusion that, in the present matter, the salaries of the player were the only indication as to the economic value attributed to the player and, thus, as to the potential market value of the player. 23. Notwithstanding the above, the members of the Chamber, after considering all the facts of the case, deemed it important to recall that, although it had considered that the player was to be held responsible for having terminated the contract without just cause, one should not omit the fact that Club A’s behaviour had not been without flaws either, in particular since the ITC for the player was never requested when the player moved for the first time from country D to country B. The DRC finds that this should serve as a mitigating factor. 24. On account of all of the above-mentioned considerations, in particular the attenuating circumstances and the specificities of the case at hand, the Chamber decided that the player must pay the amount of 450,000 to Club A as compensation for breach of contract, which is considered by the Chamber as a fair and adequate amount of compensation in the present matter. In addition, considering the request of Club A, the Chamber decided to award 5% interest on said amount as from the date of the claim. 25. Furthermore, in accordance with the unambiguous content of article 17 par. 2 of the Regulations, the Chamber established that Club E shall be jointly and severally liable for the payment of compensation. 26. In this respect and in relation to Club E’s argumentation, the Chamber was eager to point out that the joint liability of a player’s new club is independent from the question as to whether this new club has committed an inducement to contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber that was repeatedly confirmed by the Court of Arbitration for Sport (CAS). Hence, the Chamber decided that Club E is jointly and severally liable for the payment of the relevant compensation. 27. In relation to Club A’s request for legal costs, the Chamber referred to art. 18 par. 4 of the Procedural Rules which stipulates that in proceedings of the DRC no procedural compensation shall be awarded. As a result, the Chamber decided to reject this part of Club A’s claim. 28. The Chamber concluded its deliberation by rejecting any further claim lodged by Club A. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Club A, is partially accepted. 2. The first Respondent, Player C, has to pay to the Claimant, within 30 days as from the date of notification of the present decision, compensation for breach of contract in the amount of 450,000 plus 5% interest p.a. on said amount as from 26 April 2012 until the date of effective payment. 3. The second Respondent, Club E, is jointly and severally liable for the payment of the aforementioned amount. 4. In the event that the amount due to the Claimant is not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. The Claimant is directed to inform the first Respondent and the second 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. 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