Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 January 2013,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Jon Newman (USA), member
Damir Vrbanovic (Croatia), member
Todd Durbin (USA), member
on the claim presented by the player
Player K, from country M
as Claimant
against the club
Club A, from country Q
as Respondent
regarding an employment-related dispute arisen between the parties.
I.
Facts of the case
1.
On 27 September 2007, Player K, from country M (hereinafter: the Claimant), and
Club A, from country Q (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract) valid from the date of its signature until 31
July 2010 (cf. clause 9 par. 1 of the contract). “Extension to the contract for third
year is option for two parties” (cf. clause 9 par. 2 of the contract).
2.
The “Football Player’s Contract Schedule” provided for a total amount of
EUR 1,050,000, as set out below:
“First and second year:
Signing fee: EUR 200,000
Salary: EUR 150,000 to be paid by 12 monthly salaries for EUR 12,500 per
month
Third year:
Signing fee: EUR 100,000 signing at the beginning of the season 2009/2010
Salary: EUR 250,000 to be paid by ten months EUR 25,000 per month.”
3.
Clause 9 par. 3 of the contract stipulates that “the First Party has the right to
terminate the contract at any time if the Second Party violates the Clubs Rules or
country Q Football Association or the country Q Olympic Committee Regulation or
for bad performance. In this case the Second Party is entitled for the remaining
month(s) of the season”.
4.
On 16 August 2009, the Respondent remitted a letter to the Claimant, by means of
which it informed him that “We refer to article IX; part 2 of the contract signed
between us on 27/09/2007 which states “Extension to the contract for third year is
option for two parties”. As we reached the beginning of the third season, we
would like to inform you that we have willingly to terminate your contract”.
5.
On 15 September 2009, the Claimant lodged a complaint before FIFA claiming that
the Respondent had prematurely terminated the contract. In this respect, he made
reference to the letter of the Respondent dated 16 August 2009 and, in particular,
to the fact that the Respondent terminated the contract with basis on clause 9
par. 2 of the contract.
6.
The Claimant held that there would be a contradiction between par. 1 and 2 of
clause 9 of the contract. Par. 1 determines a contract period until 31 July 2010,
whereas par. 2 stipulates the option to extend the contract for a third year.
Consequently, the Claimant stated that it should not be followed par. 2 but par. 1,
since the latter would represent the will of the parties.
Player K, from country M / Club A, from country Q
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7.
As a consequence, the player claimed the payment of a total amount of
EUR 350,000 composing of the remunerations until the end of the contract, i.e.
until 31 July 2010.
8.
In its statement of defence, the Respondent rejected the player’s claim stating that
according to clause 9 of the contract, the parties agreed a period of two years
with the option for a third year. Even the “Football Player’s Contract Schedule”
would separate the first two years and the third year. Clause 9 par. 2 of the
contract has to be understood as an option to extend the contract for a third year;
otherwise, this clause would become completely pointless.
9.
Furthermore, the Respondent stated that it had informed the Claimant that it did
not want to use the option to extend the contract two weeks prior to the end of
the second contractual year and underlined having fulfilled all its financial
obligations until August 2009. Moreover, according to the Respondent, the
Claimant had never expressed his will to extend the contract.
10.
With regard to the employment contracts the Claimant had concluded with the
country Q and the country T club, the Respondent pointed out that even if the
Dispute Resolution Chamber (DRC) should assume a breach of contract by the
Respondent, the Claimant would, in accordance with the jurisprudence of the DRC
and the Court of Arbitration for Sport, only be entitled to receive the difference
between his current remuneration and the remuneration agreed with the
Respondent. It had to be considered that the Claimant had terminated his contract
with Club B Sport club, and, therefore, did not keep the loss as low as possible.
Consequently, “a potential compensation, in any case, should be limited to the
following calculation: EUR 350,000 minus USD 140,000 minus the amount earned
by the player at Club S concerning the period from January 2010 until 31 July
2010”, so the Respondent. Finally, the Respondent asked to oblige the Claimant to
pay all costs of the present proceedings.
11.
With regard to his contractual situation, the Claimant informed that on
8 September 2009, he concluded an employment contract with the country Q club,
Club B Sport Club, valid from 1 September 2009 until 30 June 2010 for the total
remuneration of USD 200,000 payable as follows:
-
USD 100,000 as signing fee;
USD 100,000 as salary to be paid in instalments of USD 10,000 each between
1 September 2009 and 30 June 2010.
On 9 January 2010, the Claimant informed Club B Sport Club that he would
terminate the contract.
Player K, from country M / Club A, from country Q
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12.
On 21 January 2010, the Claimant and Club S, from country T, concluded an
employment agreement valid from the date of its signature until 31 May 2012.
Clause 3 of the contract provided for the following payments until 31 July 2010:
-
EUR 10,000, payable 3 days after the registration of the contract;
EUR 100,000, payable in 5 equal instalments amounting to EUR 20,000
between 1 February and 1 June 2010.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: 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 15 September 2009.
Consequently, the edition 2008 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. 2 and 3 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 2008), 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 country M player and a country Q club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2008), and considering that the present claim was lodged on
15 September 2009, the 2008 version 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. It started by
acknowledging that the player, in his claim, alleged having signed a three-year
contract whereas the Respondent insisted having concluded a two-year contract
only.
5.
In view of this dissent between the parties in respect of the basic question as to
whether a two-year or a three-year contract had been concluded, the members of
the Chamber turned their attention to the pertinent employment contract and its
interpretation.
Player K, from country M / Club A, from country Q
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6.
In that regard, the DRC observed that according to clause 9 par. 1 of the pertinent
contract, the latter was valid from the date of its signature, i.e. 27 September
2007, until 31 July 2010. However, clause 9 par. 2 of the contract stipulated an
option to extend the contract for a third year for which the agreement of both
parties was needed.
7.
In continuation, the members of the DRC took into account that the Respondent
had informed the Claimant in writing on 16 August 2009, i.e. by the end of the
second year, that it would not wish to continue their employment relationship.
Therefore, the Chamber concluded that the parties had not found an agreement
to extend the contract.
8.
As a consequence, the Dispute Resolution Chamber decided that, since the parties
did not extend their employment relationship and therefore, no valid contract was
existing at the time of the alleged breach of contract, there was no possibility for
the Chamber to enter into the question whether or not such alleged employment
contract had been breached.
9.
All the above led the Dispute Resolution Chamber to conclude that the claim of
the player has to be rejected.
*****
Player K, from country M / Club A, from country Q
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player K, 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: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
Player K, from country M / Club A, from country Q
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