TAS - CAS 1453, 1469 de 2008

Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2008/A/1453 Elkin Soto Jaramillo & FSV Mainz 05 v/ CD Once Caldas & FIFA and CAS 2008/A/1469 CD Once Caldas v/ FSV Mainz 05 & Elkin Soto Jaramillo, award of 10 July 2008

Panel: Mr Michael Beloff QC (United Kingdom), President; Mr Hendrik Willem Kesler

(Netherlands); Ms Margarita Echeverria Bermudez (Costa Rica) Football Contract of employment Unilateral termination of the contract without just cause during the protected period Validity of an amendment to the contract of employment that was not deposited Calculation of the compensation for breach of the contract

1. Colombian law does not require an amendment to the contract of employment to be deposited for it to be valid. Neither does Art. 8 of the FIFA Regulations, which only requires deposit as a matter of administration, but not as a condition of validity.

2. The compensation of the former club for breach of the employment contract by the player can be calculated as the amount of money that the player would have earned with his former club until the end of his contract deducted from the amount of money that he earns with his new club for the same period.

The first Appellant (“the Player”) is a Colombian professional football player. The Second Appellant is a football club which has its seat in Mainz in Germany affiliated to the German Football Association (“the German club”) which in turn is a member of FIFA. The First Respondent is a football club which has its seat in Manizales Colombia (“the Colombian club”) affiliated to the Colombian Football Association, which in turn is also a member of FIFA. The Second Respondent, Fédération Internationale de Football Association (FIFA; “the second Respondent”) is the international federation of football which is registered in Zürich, Switzerland. In 1999 the player signed for the Colombian Club for a transfer fee of USD 7,000.

On 5th January 2005, the Player and the Colombian Club signed a one year employment contract, valid from 5th January 2005 until 3rd January 2006.

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CD Once Caldas v/ FSV Mainz 05 & Elkin Soto Jaramillo, award of 10 July 2008 On 19 October 2005 the Player and the Colombian club signed a one year employment contract, valid from 3 January 2006 until 3 January 2007 (“the October contract”). The second paragraph of clause 2 provided: “The work object of the present contract (football player in the club Once Caldas) is for a predetermined deadline of one (01) year, it will start on the day three (3) January 2006 and will end the day three (03) January 2007. If before the expiry date of the deadline stipulated in this clause, none of the parties will notify the other party in writing of its/his decision of not extending the contract with an advance not inferior to thirty (30) days, the contract will be understood as renewed for the same period as initially agreed.” At the start of 2006 while the Player was at a training centre, he was informed by a representative of the Colombian Club that Sporting Club Barcelona, (“the Ecuadorian club”) were interested in taking him on loan for a year. A new coach had been appointed for the Colombian Club and his prospects of regular play had in consequence diminished. Moreover, he thought that at that stage in his career it would be advantageous for him to play elsewhere after half a decade at the Club. Therefore he agreed to the arrangement proposed. At that stage there was no document to confirm it. On 16 January 2006 the Player signed a letter to the Colombian club asking for a licence to play for the Ecuadorian club for one year and asserting, inter alia that after the loan period with the

Ecuadorian club, he intended to renew his contract with the Colombian club (“the January letter”). The last paragraph stated [in translation] “once the period of the temporary licence from work has elapsed, my services as a professional football player of [the Colombian club] will recommence on the same terms on which they have been suspended and on the same condition, so that the contract will be in force until (3) January 2008”. The interpretation of that letter (but not its authenticity) is in issue. However the Player was not given a copy of it. On the same day the Colombian club asserts (but the Player denies) that the Player signed a document called “Otrosí al contrato de trabajo a término fijo de tres (03) anos suscrito entre la Corporation Deportiva Once Caldas y Ekin Soto Jaramillo” (In translation: “Annex to the three-year employment contract signed between Corporation Deportiva Once Caldas and Elkin Soto Jaramillo”) (“the Otrosí”), countersigned on behalf of the Colombian Club. The authenticity of the Otrosí is in issue. On 18 January 2006 the Player signed a tripartite agreement with the Ecuadorian and the Colombian Club providing that he would play for the Ecuadorian Club (“the Barcelona Contract”). It contained the following provision (in translation): “5th Clause: Purchase Option “Once Caldas grants to THE CLUB a purchase option regarding the federative and economic rights of THE PLAYER, for the amount ONE MILLION FIVE HUNDRED THOUSAND UNITED

STATE DOLLARS (1.500.000 USD).

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CD Once Caldas v/ FSV Mainz 05 & Elkin Soto Jaramillo, award of 10 July 2008 The said option can be exercised by THE CLUB while the contract is in force, and will be ineffective after its

expiry. In this same act, the labour contract is signed between THE PLAYER and THE CLUB”. In September 2006, the Colombian club president travelled to Ecuador and proposed to the Player that he sign a one-year employment contract dated 18 September 2006 that would be valid for one year after the loan of the Player to the Ecuadorian Club, i.e. from 3 January 2007 until 2 January 2008 (“the September proposal”). The Player rejected the proposal and never signed the proffered document. On 30 November 2006 i.e. more than 30 days prior to the expiry of the employment contract with the Colombian club, the Player notified the Colombian club that he renounced any extension of his contract with the Colombian club for one further year, in accordance with the second paragraph of clause 2 of the October contract (“the November letter”). On 1 December 2006 the Colombian club refused to acknowledge the non-renewal of contract, referring in that context to the January letter. At the end of 2006 the German club were seeking a left footed midfielder. The Player fitted that criterion. On 5 January 2007 the Player signed an employment contract with the German club valid for one year and a half, until 30 June 2008. On the 7th January 2007 the Colombian Club disputed the German Club‟s ability right to enter into such a contract on the ground that the Player was still under contract with it. On 5 January 2007 the German Football Association (DFB) asked for the Ecuadorian Football Federation to issue the international transfer certificate (ITC) for the Player, as he was last registered with the Ecuadorian Club. On 12 January 2007, the DFB contacted FIFA and informed the latter that it had neither received the requested ITC nor any response from the Ecuadorian Football Federation. In the latter part of January 2007 there was correspondence passing between the Columbian

Football Federation, the Colombian Club, the German Club (with FIFA acting as a communication centre) in which the German Club pressed for an ITC and the Colombian entities denied their entitlement to the same. On 1 February 2007, dealing with the matter with commendable celerity in the light of the German Club‟s urgent need for the Player‟s services, the Single Judge of the Players‟ Status Committee (PSC) authorised the DFB to register the Player with the German club.

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CD Once Caldas v/ FSV Mainz 05 & Elkin Soto Jaramillo, award of 10 July 2008 In the event the Player played only 8 games for the German Club in the first season and could not save them from relegation from the Bundesliga. On 28 September 2007 the FIFA Dispute Resolution Chamber (DRC) decided that the Player breached his contract with the Colombian without just cause. The DRC held that he was therefore liable to pay the Colombian club compensation in the amount of EUR 300,000 and imposed a restriction of four months on his eligibility to play in official matches (“the restriction”). The German club was declared jointly and severally responsible for the payment of the compensation to the Colombian club. On 18 December 2007 the DRC decision was notified to the Player. The decision of the DRC found that the Player had a subsisting contract with the Colombian club primarily by reference to the January letter. It stated, materially: “10. The Chamber then started extensive deliberations as to whether the employment relationship between the player and CD Once Caldas had been renewed or extended beyond 3 January 2007. In this respect, the Chamber first and foremost took note that the player had signed declaration (declaration of suspension) according to which the employment contract with CD Once Caldas would be suspended during the loan

period for one year and that the contract would be extended under the same conditions for one more year until 3 January 2008. The player never contested having signed this declaration of suspension. Furthermore, the Chamber took note that the club had accepted the declaration of suspension by including the annotation “aceptado” and countersigning it. The Chamber particularly referred to the fact that the declaration of suspension mentioned the new date of the ordinary expiration of the contract, i.e. 3 January 2008.

11. In respect, the Chamber was eager to emphasise that it could not follow the argumentation of the player and the German club that the declaration of suspension cannot be considered an extension of contract but solely a unilateral and informative declaration. In fact, as mentioned before, it bears the signature of both Parties and clearly indicates the new date of expiry of the contractual relationship. Even if it should originally have been a unilateral proposal from the player, the club had explicitly accepted it in writing by means of the relevant annotation. … 15. […] Furthermore, the Chamber emphasised that the declaration of suspension alone would already be a sufficient document to prove the extension of the contractual relationship until 3 January 2008. […]”.

Furthermore (but secondarily), the DRC deemed that the subsistence of the Player/Colombian club relationship until 3 January 2008 could be based on the Otrosí: “14. Bearing in mind the above, and in particular also the fact that the Columbian club had, upon request, immediately produced the original copy of the document which was now on file, the members of Chamber unanimously deemed that they had no genuine reasons to doubt on the authenticity of the relevant document. Effectively, the quite singular signature of the player appears to be identical to other signatures of the player on other documents on file, the expiry date of the extended contract is the same CAS 2008/A/1453 5 Elkin Soto Jaramillo & FSV Mainz 05 v/ CD Once Caldas & FIFA

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CD Once Caldas v/ FSV Mainz 05 & Elkin Soto Jaramillo, award of 10 July 2008 like mentioned in the declaration of suspension (3 January 2008), both documents mention that the contract is extended under the same conditions and both documents bear the same type face. […]”. On 4 January 2008, the Player and the German Club filed with the Court of Arbitration for Sport (CAS) an appeal against the Decision. Both applied that the Decision of the DRC set aside and asked for a stay of execution of the restriction. On 8 January 2008 the Colombian Club filed its own statement of appeal. On 14 February 2008 this Panel granted a stay. In the event the Panel‟s ruling proved of little practical effect. The Player was injured in the second season and only played for 30 minutes for the German Club. As the appeals procedures CAS 2008/A/1453 and CAS 2008/A/1469 opposed similar parties in appeal and cross-appeal, challenging the decision issued by the DRC on 28 September 2008, the Panel decided that these two disputes would be conducted jointly and disposes of by a single award. The Parties accepted this decision by signing the Order of Procedure. The parties, experts and witnesses were heard at the hearing on 30 April 2008 in Lausanne, Switzerland. LAW CAS Jurisdiction

1. The jurisdiction of CAS, which is not disputed, derives from Art. 47 of the Code of Sportsrelated Arbitration (“the Code”) and from Art. 59 ff of the FIFA Statutes.

2. It follows that, in principle, CAS has jurisdiction to decide the present dispute.

Applicable law

3. Art. R58 of the Code provides as follows: “The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the

parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

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4. Art. R59 para. 2 of the FIFA Statutes provides as follows: “The provisions of the CAS Code of Sports-related Arbitration shall apply to the proceedings. CAS shall primarily apply the various regulations of FIFA and, additionally, Swiss law”.

5. The parties have not expressly chosen any specific rules of law to be applicable to these proceedings. The FIFA Regulations necessarily apply.

6. As the seat of the CAS is in Switzerland, this arbitration is subject to the rules of the Swiss private international law (LDIP). Art. 187 para. 1 LDIP provides that the arbitral tribunal decides in accordance with the law chosen by the parties or, in the absence of any choice, in accordance with the rules with which the case has the closest connection.

7. In the event that no special request regarding the applicable law was made by the Appellant, the general rule of Art. R58 of the Code applies. It follows that the rules and regulations of FIFA shall apply primarily and Swiss law shall apply subsidiarily. The contractual relationship

(actual or alleged) between the Player and the Colombian club is prima facie governed by the Colombian law, which may therefore also be relevant. Admissibility

8. The statements of appeal filed by the parties were lodged within the deadline provided by Art. 61 of the FIFA Statutes, namely 21 days from the notification of the Decision. Furthermore,

they comply with the requirements of Art. R48 of the Code.

9. It follows that both the appeals are admissible.

Liability

10. The outcome pivots on two documents dated the 16th January 2006, the interpretation of the January letter and the authenticity of the “Otrosí”.

11. If the October Contract had been the only contract between the Colombian Club and the Player at the time he wrote the November letter, that letter would have been effective to procure his release from further service with the Colombian Club as from 4 January 2007.

Indeed according to Mr Heidel of the German Club, it was this document, which he saw prior to signature that satisfied him that the Player was indeed a free agent. The Panel has to decide whether either or both of the documents of January 16th altered the legal position from that created by the October Contract.

12. The 2006 letter provides as follows: Manizales, 16 January 2006

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CD Once Caldas v/ FSV Mainz 05 & Elkin Soto Jaramillo, award of 10 July 2008 Gentlemen

CORPORACION DEPORTIVA ONCE CALDAS

GERMAN CARDONA GUTIERREZ President ELKIN SOTO JARAMILLO, person of full age, identified with the citizenship card no. 75.096.251, by means of the present writ and based on article 51 and following of the Colombian Labour Code, ask you to be granted temporary unpaid license from work, between the sixteenth (16) January 2006 and the thirtieth (30) of December of the same year, in order to be able to offer my services as a professional football player to BARCELONA SPORTING CLUB, affiliated to the Ecuadorian Football Federation.

In advance I accept that for the termination of the license, Corporacion Deportiva Once Caldas will be exempted from the payment of all economical duties of salaries and social securities and of any other kind of obligation that will result from the employment contract for the predetermined period of one (1) year that is bounding us. Once the period of the temporary license from work has elapsed, my services as professional football player of Corporacion Deportiva Once Caldas will recommence on the same terms on which they have been suspended and on the same condition, so that the contract will be in force until third (3) January 2008. Yours faithfully, ELKIN SOTO JARAMILLO It was on its face countersigned on the Colombian Club‟s behalf.

13. A variety of points were taken on behalf of the Player and the German Club on that letter which the Panel set out together with their response.

(i) it was not an offer or another document capable of being contractual, but was no more than a declaration of intent or comfort letter. The Panel does not so read it. On its face it was an undertaking which confirmed that in consideration of the Player‟s release on license to play for the Ecuadorian Club, the Colombian Club was freed from the obligation to play him while on loan, but would have the benefit of his services at the expiry of the loan. (ii) it was not signed by the Colombian Club at the time. It is arguable that the Colombian Club‟s signature was not required at the time since it reflected an agreement already orally concluded. But even if it were better construed as an offer capable of acceptance it was an open offer and was on its face accepted by the Colombian Club‟s signature whenever appended. (iii) it did not satisfy the formalities required by (1) Colombian domestic law; (2) FIFA regulations; (3) Art. 9 of the October contract. As to (1) Colombian law requires a deposit of a contract and it is common ground such

document was not in fact deposited. The Panel has not however been shown any provision of Colombian law which stipulates that such deposit was a precondition of CAS 2008/A/1453 8 Elkin Soto Jaramillo & FSV Mainz 05 v/ CD Once Caldas & FIFA

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CD Once Caldas v/ FSV Mainz 05 & Elkin Soto Jaramillo, award of 10 July 2008 validity as distinct (for example) a means of committing a player to play for a particular club – a matter of no importance in this instance to the Colombian club until January 2008 since in the intervening period the player was playing in Ecuador. As to (2) Art. 8 of the FIFA Regulations for the Status and Transfer of Players (“the FIFA Regulations”) provides: “The application for registration of a professional must be submitted together with a copy of the player’s contract. The relevant decision making body has discretion to take account of any contractual amendments or additional agreements that have not been duly submitted to it”. FIFA Commentary on its Regulations stipulates regarding the quoted article that: “(...) In the event of a dispute, the decision-making body has the discretion to evaluate how it will consider documents that have not been deposited. The employment contract is the basis as well as the starting point for calculating the compensation due to the damaged party in the event of a contractual breach. Any amendment of the terms of the employment relationship will therefore have a direct impact on the amount that the deciding body will establish. If, however, the parties fail to deposit the new contract with the relevant authorities, the deciding body is free to decide that the parties may lose their entitlement to claim their rights out of the amended (but not deposited) contract”. Even though this Commentary is no more than a guideline for the interpretation of the FIFA Regulations, the Panel agrees with this analysis and considers that the effect of this Regulation again is to require deposit as a matter of administration but not as

precondition validity. As to (3) Art. 9 of the October contract provides as follows (in translation): “The present contract integrally replaces and leaves without effect any previous other oral or written contract celebrated between the parties. The agreed amendments to this contract will be noted in continuation of this text”. The Panel does not consider that the absence of a document formally entitled annexure has the consequence that January letter, if otherwise contractual would for that reason not be so. This would surely be to elevate form above substance. In any event the two parties‟, Player and Colombian Club were competent to enter into an agreement on 16 January if they so chose. (iv) The Player was required to sign the document as a precondition of allowing him to sign for the Ecuadorian Club. Assuming this to be so - and there was no direct evidence to contradict it - it seems to the Panel to be a factor without legal weight. It would have been odd indeed if the Colombian club had not sought to reduce to writing the terms upon which the Player could temporarily depart from the club. The Panel cannot characterise the demand for his signature in that context as a form of duress vitiating his consent. (v) The Colombian club‟s interest in the Player was purely economic i.e. they had already decided he had no future playing for them.

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CD Once Caldas v/ FSV Mainz 05 & Elkin Soto Jaramillo, award of 10 July 2008 But again, assuming this to be so – which is not improbable – they were entitled, if they could, to bind him to them so they could take advantage of that status as being still on their books in the transfer market. (vi) To attribute contractual force to the January or indeed the Otrosí would be inconsistent

with the Colombian club‟s effort to procure the Players signature to another contract in September (which did not differ in any material way in its terms). But the Colombian club might sensibly have sought to close off any possible argument of a kind which has in fact been advanced. No conceivable forensic ingenuity would have sustained a challenge to a document of the kind proffered to the Player in September.

14. There are, in any event, a variety of points which positively favour the Colombian Club‟s position.

(i) A loan is intrinsically consistent with a temporary, not a permanent release of a player. It prima facie implies that he will return when his loan expires. (ii) The provision of the Barcelona contract which gave the Ecuadorian Club the option to purchase the player at the conclusion of the loan period would make no sense if the player was to be free at the end of the loan period. The player claims that he did not read (and therefore appreciate) that provision of the Barcelona contract. But even if he did not, the provision suggests that at the very least that the Colombian Club anticipated that he would return, which can only have been on the basis of one or other of the 16 January documents.

15. As to the Otrosí, the main thrust of the argument of the Player and the German Club was that it was a forgery brought into existence to fill a legal vacuum. It would need strong evidence to sustain such serious allegations and in the Panel‟s ruling on the stay, it signalled the need for such evidence. But although the player and the German Club have throughout this procedure volunteered to submit it to a graphological test, in the end they decided not to do so themselves, apparently (the Panel were told by the Counsel), because of lack of confidence in a graphologists ability to provide a direct answer to a direct question. This was a matter for their decision. This Panel cannot constitute itselves as an amateur graphologist, nor is there

any obligation upon it – although it has under R44.3 and R57 of the Code of Sports-related Arbitration the power - to procure evidence that a party is not willing to procure for itself.

16. A variety of points were taken by the Player and the German Club on the Otrosí, which again the Panel set out, together with their response.

(i) That there was no club logo on it. But neither was there on the October contract. (ii) There was an unexplained space at page two before the last paragraph.

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CD Once Caldas v/ FSV Mainz 05 & Elkin Soto Jaramillo, award of 10 July 2008 This may well be the responsibility of the typist or word processor even, if unexplained, it has no necessarily sinister significance. The Otrosí was not signed or paragraphed on each page contrary to the practice of the Colombian Club: see eg: the October contract. The Panel has insufficient evidence of such a practice as to cast doubt in the Otrosí for this reason above. (iii) The Otrosí describes itself as an annexe to a three year contract whereas on any view there was only a one year contract (i.e. the October Contract) in being. That seems to the Panel to point away from forgery and towards incompetence. (iv) The signatures of the Player on both January documents are identical rather than similar. If the two were signed at the same time that might provide an explanation; but, as has been already stated, this Panel is not in the business of graphology. (v) There was no mention of the Otrosí in the December letter although the January letter was referred to. This could be explained by simple forgetfulness. It is consistent with but not by itself probative of the January contract being a creation after the event.

17. The Panel must also take cautious note of the fact that Counsel for the Colombian club told us that he had certainly seen both documents in the Club‟s files shortly after the time when they purportedly signed (although he was not present on 16 January). The arbitral formation would be loath to assume that a member of the legal profession would deliberately mislead them - indeed tell them a lie – unless there was compelling evidence that he or she had done so.

18. Although then there are oddities, this Panel are not persuaded on balance that the Otrosí is other than a genuine document. The presumption of regularity has not been displaced. It follows that it is not accepted that the Player did not sign the Otrosí although it is possible that he may have truly forgotten that he did so since no copy was provided to him. It is also plausible that the Colombian Club should wish to dot the I‟s and cross the T‟s. In particular an annexe or addendum would on any view satisfy the requirements of article 9 of the October Contract. In short the Panel‟s preferred view is that the Otrosí was a bilateral contract duly signed. But it has to be stressed that it is not essential to the Panel‟s conclusion which, like that of the DRC can be based on the January Letter alone.

19. One possible interpretation of those controversial events is that it was only when the Colombian Club sought to procure the Player‟s signature to a new contract in September that the Player realised that there might be doubt as to whether, one way or another, on January 16 he had committed himself to a further year playing for them. He raised the matter with his adviser Mr. Villareal (a scout) who in turn sought the opinion of an Argentinean lawyer whom CAS 2008/A/1453 11

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award of 10 July 2008 he habitually used. That lawyer saw the January letter but not Otrosí and that lawyer supplied the seed of the arguments which have been developed before us by Mr. Monteneri.

20. Given that the Panel has found, when the Player signed for the German Club, he was not a free agent, it follows inevitably that he was in breach of contract.

21. The Panel find however that the German Club were innocent of any complicity in breach for the following reasons.

(i) The Player himself told Mr Heidel that he was a free agent. (ii) That it would appear to be supported by the November letter which Mr Heidel says (and the Panel accepts) he saw at the material time. (iii) There was no evidence before the German Club to contrary effect. (iv) The first letter from the Colombian club which suggested that there could have been an impediment to the Players signature for the German Club post-dated the contract which he had entered into with it. (v) Subsequent correspondence is entirely consisting with the German Club‟s having acted in entire good faith when signing, the contract with the Player but finding themselves caught up in a dispute not of its making. Their protestations of innocence seem to the Panel entirely sincere not least because they were volunteering practical proposals for resolution. Sanction

22. The FIFA Regulations provide so far as material as follows: Art. 17 Consequences of Terminating a Contract Without Just Cause The following provisions apply if a contract is terminated without just cause:

1. In all cases, the party in breach shall pay compensation. Subject to the provisions of Art. 20 and annex 4 in relation to training compensation, and unless otherwise provided for in the contract, compensation for the breach shall be calculated with due consid