F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 9 May 2014, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Damir Vrbanovic (Croatia), member on the claim presented by the club, Club A, country B as Claimant against the player, Player C, country B as Respondent 1 and the club, Club D, country E as Respondent 2 and the club, Club F, country E, as Respondent 3 regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 9 May 2014, in the following composition: Geoff Thompson (England), Chairman Johan van Gaalen (South Africa), member Damir Vrbanovic (Croatia), member on the claim presented by the club, Club A, country B as Claimant against the player, Player C, country B as Respondent 1 and the club, Club D, country E as Respondent 2 and the club, Club F, country E, as Respondent 3 regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 17 November 2009, player from country B, Player C (hereinafter: player or Respondent 1) and the club from country B, Club A (hereinafter: Club A or Claimant) signed an employment contract valid for two sporting seasons, reportedly starting as of 17 November 2009 and valid until 31 July 2011. 2. According to the contract, the player was inter alia entitled to the following remuneration: • a signing-on fee in the amount of 5,000 ; • a monthly remuneration of 300; • a monthly training allowance in the amount of 100; 3. According to the Football Association of country B, the sporting season 2010/11 in country B came to an end on 31 July 2011. 4. On 12 January 2010, a loan agreement was signed between Club A and the club from country E, Club D (hereinafter: Club D or Respondent 2). Said agreement provides that the player is to return to Club A at the end of the sporting season 2009/10. 5. On 13 January 2010, an employment contract was signed between the player and Club D, valid for one sporting season. 6. According to the Football Association of country E, the sporting season 2009/10 in country E came to an end on 15 May 2010. 7. In this respect, an International Transfer Certificate (ITC) dated 21 January 2010 was issued by the Football Association of country B to the Football Association of country E. 8. Club A explained that Club D asked for an extension of the loan of the player until 31 May 2011. 9. In this respect, Club A alleged that a loan fee in the amount of USD 40,000 was orally agreed upon between Club A and Club D and that the player was loaned for another year. 10. Club A asserted that since Club D did not pay the above-mentioned loan fee, it sent a letter to the Football Association of country E in which Club A asked it to ensure that Club D proceeds to the payment of the loan fee and, should Club D not pay, that the player returns to Club A. Reportedly, Club D did not react to said letter. 11. On 17 January 2011, the player and the club from country E, Club F (hereinafter: Club F or Respondent 3), signed an employment contract, entering into force on the same date and expiring on 31 May 2015. 12. Club A allegedly discovered that the player had been transferred by Club D to Club F. 13. In view of the above, on 16 February 2011, Club A sent a letter to Club D, Club F and the player in which it complained that (i) Club D had still not paid the loan fee, (ii) Club D transferred the player to Club F without having informed Club A or having obtained Club A’s consent, (iii) the player is still bound by a valid contract to Club A until 31 July 2011 and (iv) Club F accepted to hire a player who is (a) in breach of contract during the protected period towards Club A, and (b) who was transferred from a club that was only benefiting of his services on a loan basis. 14. Furthermore, Club A referred the clubs and the player to the consequences that the situation at hand would trigger based on art. 17 of FIFA’s Regulations on the Status and Transfer of Players and offered to negotiate in view of reaching an amicable settlement. 15. By means of a letter dated 22 February 2011 addressed to Club A, Club D rejected Club A’s claim and specified that Club D did not sign any agreement with Club A in relation to the player. 16. On 3 March 2011, Club A lodged a claim for breach of contract and inducement to breach of contract before FIFA against the player, Club D, and Club F, respectively. 17. In its claim, the club held that by joining Club F, the player unilaterally terminated the employment contract he had with Club A, during the protected period, and without any just cause. 18. According to Club A, the player is therefore to be sentenced to pay compensation for breach of contract and Club D and Club F shall be jointly and severally liable for the payment of said compensation. 19. Equally, Club A held that a four months restriction to play in official matches has to be imposed on the player. 20. In continuation, Club A addressed Club D’s conduct, referring to art. 41 of the Swiss Civil Code, which reportedly sets forth that “anyone who caused any illicit damage to someone, intentionally, with imprudence or negligently, must repair that damage.” 21. Likewise, Club A stressed that not only Club D acted in bad faith, as it transferred a player who was registered with it on a loan basis to Club F without obtaining Club A’s consent, but also received a transfer compensation from Club F, which entirely should be reallocated to Club A. In this respect, Club A referred to art. 61 of the Swiss Civil Code, which reportedly stipulates “who, without any justified cause, is enriched him damaging the asset of a third, I owed to give back that enrichment.” 22. As to the consequences of the situation at hand, Club A highlighted that the amount of compensation it is entitled to receive shall reflect the gravity of the facts at hand and take into account the player’s and the clubs’ bad faith as well as the fact that the breach occurred during the protected period. 23. In view of the above, and subject to the amount of the transfer fee stipulated in the agreement signed between Club D and Club F in relation to the player’s transfer, Club A requested to be granted compensation of not less than USD 300,000, plus 5% interest per year calculated as from the date on which Club A lodged its claim before FIFA. 24. Finally, Club A held that as the clubs induced the player to breach the contract signed with Club A during the protected period, both clubs shall be banned from registering any new player, either nationally or internationally, for two registration periods. 25. Club A explained that no request for the issuance of the player’s International Transfer Certificate (ITC) was made in relation to the alleged second loan of the player, allegedly since the player was already registered in country E, with Club D. 26. On 11 June 2010, the Football Association of country B sent a letter to the Football Association of country E in which the Football Association of country B requested the Football Association of country E to “release” the player along with the ITC, so that the player could return to Club A. 27. In his answer to the claim, the player confirmed that, in 2009, he signed a contract for two sporting seasons with Club A and that after two months, he was loaned for six months to Club D for free. 28. The player explained that in June 2010, i.e. after the end of the loan and whilst the player was back in country B, his agent contacted him and asked him to return to country E to continue to play for Club D. According to the player, his agent had spoken with Club A, which agreed to such arrangement. The player then signed with Club D another contract valid for one season with an extension option. 29. The player stated in this respect that Club D’s president assured him that he was in contact with Club A in connection with this arrangement. 30. The player further explained that his agent then informed him of Club F’s interest. In this respect, the player pointed out that he informed his agent that, since the formalities between Club A and Club D had not all been finalized, Club F should rather contact Club A and not discuss with Club D. In particular, the player stressed that since, to his knowledge, Club D had not yet paid Club A, he was still bound to Club A. 31. The player stated that when he arrived in Club F, he asked that Club A should be contacted, which was reportedly done via the player’s agent. Additionally, Club A’s president would have told the player that the player’s agent had informed Club A that Club D was ready to exercise the option to transfer the player from Club A to Club D on a definitive basis. 32. As it appeared to the player that all involved parties, including Club A, had agreed and that Club F would pay a fee to Club A and Club D in order to acquire the player’s services, on 17 January 2011, the player signed an employment contract with Club F valid until 31 May 2015. 33. The player held that he was contacted by Club A after a few matches, who reproached him having joined Club F whereas Club A allegedly had not agreed to release him. 34. Club F reportedly told the player that it had paid USD 100,000 to Club D and USD 40,000 to Club A, i.e. USD 140,000 in total, in connection with his services. 35. In spite of having been invited to do so, Club D did not present any response to Club A’s claim. 36. In its reply to the claim, Club F asserted that it always acted lawfully and in good faith. 37. In particular, Club F stressed that the player was transferred to it from Club D and that it paid the amount of USD 105,000 to Club D, an amount it deemed reasonable in view of the definitive acquisition of the player’s services. It also held that the Football Association of country E approved the transfer. 38. In this respect, Club F pointed out that in the relevant transfer contract, it is stipulated that “Club D declares and undertakes that it holds 100% of the rights of the player’s player card and/or any other sporting rights and/or federative rights connected with the player and that there is no third party that holds such rights as stated.” 39. In continuation, Club F explained that the aforementioned transfer amount was determined as a result of the fact that Club D would have said that it still had to pay USD 30,000 to Club A for the player’s transfer and that it wanted to receive USD 75,000 for itself. Club F further explained that it was agreed that it would pay the full amount to Club D who, in turn, would transfer the relevant amount to Club A. 40. Additionally, the club submitted an affidavit from the player’s agent in country E who, inter alia, confirmed having intervened in the negotiations between Club D and Club F in relation to the player’s transfer and that throughout said negotiations, Club D had always claimed to be the sole owner of the “player’s federative and sportive rights”. 41. In continuation, Club F submitted a copy of a letter dated 21 February 2011 issued by Club D, in which the latter confirmed that “[Club D] received from [Club F] all of the money set forth between [the clubs]” and that “[Club F] does not owe any amount to [Club D] or to any other party. Including the team from country B that is suing [Club F].” 42. Finally, Club F held that should it have to pay compensation to Club A, it would find itself having to pay twice for the player’s recruitment: a transfer fee on the one hand and compensation for breach of contract on the other hand, which it considers to be unjustified, in particular since it did not cause any damages to Club A. 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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 3 March 2011. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a club from country B, a player from country B as well as two club from country E. 3. 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 2012), and considering that the present claim was lodged on 3 March 2011, 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, the Chamber 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 Chamber emphasized 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 particular, the DRC noted that according to the Claimant, inter alia, the Respondent 1 breached the employment contract he had signed with the Claimant on 17 November 2009 by having joined the Respondent 3 without its consent in January 2011. 6. In this respect, the Chamber recalled that, according to the Claimant, the Respondent 1 was only registered with the Respondent 2 on a loan basis, on the basis of an oral agreement between the Claimant and the Respondent 2. Hence, the three Respondents would not have been in a position to proceed to the Respondent 1’s transfer from the Respondent 2 to the Respondent 3 without the Claimant’s approval and, in, particular, the Respondent 1 was not in the position to sign an employment contract with the Respondent 3 in January 2011. 7. On the other hand, the DRC noted that for his part, the Respondent 1 inter alia reported that on various occasions, within the framework of his transfer from the Respondent 2 to the Respondent 3, the Claimant was informed of the events that were taking place, to which it had agreed. In addition, the Respondent 1 highlighted that the Claimant had agreed with his second move to the Respondent 2. 8. In addition, the DRC took note that, whereas the Respondent 2 had not replied to the claim, the Respondent 3, for its part, inter alia claimed having lawfully registered the Respondent 1 by means of a transfer contract signed with the Respondents 1 and 2, specifying that the Respondent 2 always presented itself as the club which was entitled to transfer the Respondent 1. 9. In view of the allegations and arguments presented by the parties involved in the present matter, the Chamber underlined that in order to be able to establish as to whether, as claimed by Claimant, and contested by the Respondent 1, the Respondent 1 is to be held liable for breach of contract, it should first focus its attention on the circumstances surrounding the second registration of the Respondent 1 with the Respondent 2 after the Respondent 1 had returned to the Claimant following the end of the loan period in June 2010. 10. Indeed, the Claimant alleges that the Respondent 1 was registered for the second time with the Respondent 2 on a loan basis at the time when the Respondent 1 transferred from the Respondent 2 to the Respondent 3 and the player signed an employment contract with the Respondent 3. 11. The Respondent 1, for his part, highlighted that he returned to country E to the Respondent 2, after he had returned to country B following the end of the loan period in June 2010, with the Claimant’s consent. 12. In continuation, the Chamber noted that according to the Claimant, the conditions of the Respondent’s 1 alleged second loan to the Respondent 2 were only agreed orally. 13. In view of the above, the Chamber deemed it relevant to refer to art. 12 par. 3 of the Procedural Rules, which sets forth that any party claiming a right on the basis of an alleged fact shall carry the burden of proof. After careful study of the documentation on file, the members of the DRC concluded that there was no evidence on file demonstrating that the Respondent 1’s second move from the Claimant to the Respondent 2 was on a loan basis. 14. Additionally, the Chamber highlighted that the Respondent 1, for his part, had not declared that his returning to country E to join the Respondent 2 for the second time was on a loan basis. 15. As a result, the Chamber held that in view of the above, it can only be concluded that the Claimant consented to the Respondent 1’s second move to the Respondent 2. In addition, the Chamber concurred that the burden of proof lies with Club A to prove that the Respondent 1’s second move to the Respondent 2 was on a loan basis, i.e. that the Respondent 1 had to return to the Claimant. 16. With these considerations in mind, the Chamber found that the Claimant and the Respondent 1 agreed upon an early termination of the employment contract and that the Respondent 1 was not bound to the Claimant when he signed an employment contract with the Respondent 3. 17. On account of all the above, the Chamber decided to fully reject the Claimant’s claim. ***** III. Decision of the Dispute Resolution Chamber The claim of the Claimant, Club A, 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