Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 January 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Theo van Seggelen (Netherlands), member
on the matter between the club,
Club A, country B
as Claimant
and the player,
Player C, country B
as Respondent 1
and the club,
Club D, country E
as Respondent 2
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 17 January 2012, the player from country B, Player C (hereinafter: the
Respondent 1), born on 8 October 1994, and the club from country B, Club A
(hereinafter: the Claimant), signed an employment contract (hereinafter: the
contract) valid as from 2 January 2012 until 8 October 2012.
2.
The contract is titled “Sporting Employment Contract” and defined within as
an “apprenticeship contract” for a “non-originary player”.
3.
In accordance with the contract, the Respondent 1 was entitled to receive a
monthly salary of 20,000,000, plus a “complementary annual salary”
equivalent to 1/12th of the total amount received through the calendar year.
4.
Moreover, art. 6 of the contract defined “originary player” as the one who is
transferred or registered for the first time with the Claimant.
5.
According to art. 6 b) of the contract, the “non-originary [Respondent 1]”
granted his consent to extend the contract for an additional term of two years
if the Claimant met the following conditions:
If the Claimant expressed its intention to extend the contract by
telegram or other reliable means, 30 days before the expiry of the
contract;
If the Claimant offered a non-specified salary increase.
6.
Art. 8 of the contract stipulated that at the expiry of the “apprenticeship
contract”, the Respondent 1 obliged himself to sign a “Professional Sporting
Employment Contract” with the Claimant. Moreover, art. 8 established that if
the Respondent 1 rejects signing a new contract with the Claimant, the
Respondent 1 must pay as compensation to the Claimant the amount of USD
2,000,000.
7.
On 23 October 2012, the Respondent 1 submitted a request before the Players’
Status Committee of the Football Association of country B, in order to be
considered a “free player”.
8.
In this respect, on 20 November 2012, the Players’ Status Committee of the
Football Association of country B rejected the Respondent 1’s request, on the
following basis: “the request from [the Respondent 1]… cannot be admitted as
[the Respondent 1] belongs to [the Claimant]…and reaching 18 years old, does
Club A, country B / Player C, country B and Club D, country E
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not enable to declare himself a free player…” (note: free translation from
Spanish. Original text reads as follows: “la petición del [Respondent 1]…no
puede ser admitida en razón que el mismo pertenece y sigue perteneciendo a
[the Claimant]…y por haber llegado a 18 años de edad, no habilita a
declararse jugador libre”).
9.
On 6 December 2012, the Respondent 1’s father submitted a request before
the Football Association of country B on behalf of Respondent 1, in order to be
considered a “free player”, which was subsequently dismissed on 24 January
2013 by the Football Association of country B.
10.
On 16 January 2013, the Respondent 1 and the club from country E, Club D
(hereinafter: the Respondent 2), signed an employment contract valid as from
1 January 2013 until 30 June 2018, in accordance with which the Respondent 1
was entitled to receive a monthly salary of EUR 28,835.
11.
On 15 May 2013, the Claimant lodged a claim in front of FIFA against the
Respondent 1 maintaining that the Respondent 1 is to be held liable for
breach of contract without just cause, and requesting the payment of
compensation in the amount of USD 3,000,000, plus the payment of “6 months
of the new contract between [the Respondent 1] and [the Respondent 2]”. The
Claimant requested interest as of “the date in which the breach occurred”.
12.
The Claimant further claimed that the Respondent 2 shall be held jointly and
severally liable for the payment of compensation. Moreover, the Claimant
claimed an unspecified amount for costs.
13.
Moreover, the Claimant requested sporting sanctions to be imposed on the
Respondent 1 and the Respondent 2.
14.
In its claim, the Claimant maintained that several clubs, the Respondent 2
amongst them, started negotiations with it approximately in June 2012, for
the definitive transfer of the Respondent 1. Subsequently, the Claimant
sustained that after 3 months of negotiations, it reached an agreement with
the Respondent 2 on the terms for the definitive transfer of the Respondent 1,
agreeing on a transfer compensation of USD 3,000,000.
15.
The Claimant held that the Respondent 2 stalled the negotiations without
apparent reason until 5 September 2012, when the Respondent 2
communicated to the Claimant that it was not interested anymore in
completing the transfer, as the transfer period was already closed.
Club A, country B / Player C, country B and Club D, country E
3/11
16.
Moreover, the Claimant sustained that on 5 October 2012, it sent a telegram to
the Respondent 1, offering “significant economic improvements”, on the
professional contract, specifically offering a 25% increase in the Respondent
1’s salary, however, the Claimant held that it did not receive a response from
the Respondent 1.
17.
Afterwards, the Claimant claimed that the Respondent 1 “escaped to country E
to sign a contract with [the Respondent 2]”, after his request to be considered
out of contract was rejected by the Football Association of country B.
18.
Furthermore, the Claimant explained that the contractual relationship with the
Respondent 1 must be only considered as a professional one, taking into
account the salary the Respondent 1 received.
19.
Moreover, the Claimant sustained that the contract had not expired, as
according to it, art. 8 of the contract established an obligation for the
Claimant and the Respondent 1 to conclude a “professional” contract once the
“apprenticeship contract” expired.
20.
The Claimant argued that art. 8 “includes a way to release [the Respondent 1]
from that obligation and is to pay the amount of USD 2,000,000 as
compensation to [the Claimant]” in accordance with country B’s Civil Law and
Swiss Civil law, which the Respondent 1 and the Respondent 2 ignored.
21.
Therefore, the Claimant deemed that the Respondent 1 breached the contract
without just cause, as the Claimant offered an increase in the economic terms,
which the Respondent 1 rejected and subsequently concluded an employment
contract with the Respondent 2.
22.
The Claimant explained that the Respondent 2 induced the Respondent 1 into
breaching the contract, in order to register the Respondent 1 without paying a
transfer compensation.
23.
The Claimant held that art. 8 cannot be considered an option, “even less a
unilateral option”, as it does not depend on the will of one of the parties, as
according to the Claimant, it is an agreement to do something at a certain
time, which “only [the Respondent 1] has an option of being released from it
because nothing is said about how [the Claimant] could have avoided its
compliance”.
24.
The Claimant requested compensation in the amount of USD 3,000,000 taking
into account the alleged offer that was made previously by the Respondent 2,
Club A, country B / Player C, country B and Club D, country E
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as well as other similar offers. The Claimant also requested damages calculated
as “6 months of the new contract between [the Respondent 1] and [the
Respondent 2]” taking into account that it had to substitute the Respondent 1
with another player, the salary that shall be paid to the Respondent 1
according to the new contract with the Respondent 2, the “revenues
affected”, the liability of the Respondent 2 and that the contract was allegedly
breached within the protected period.
25.
The Respondent 1, after being informed of the Claimant’s claim, rejected it in
its entirety. In this respect, the Respondent 1 explained that while indeed he
signed an “apprenticeship contract” with the Claimant in accordance with
country B’s Labour law, he denied that said contract contained an obligation
to conclude a “professional” contract with Club A once the “apprenticeship
contract” expired.
26.
On his part, the Respondent 1 explained that he rejected the Claimant’s offer
received on 5 October 2012 and that on 23 October 2012, he submitted a
request to the Football Association of country B in order to be considered out
of contract, as he considered his contractual relationship with the Claimant to
have expired. In this respect, the Respondent 1 held that the Football
Association of country B rejected his request on the basis that he was not
considered a professional player, and that in consequence, he, as an amateur
player, was free to conclude an employment contract with the Respondent 2.
27.
The Respondent 1 argued that he based his request in front of the Football
Association of country B to be considered out of contract on the natural expiry
of the term of the “apprenticeship contract” with the Claimant and that he
never denied that this contract had the characteristics to be considered a
professional contract. However, the Respondent 1 explained that the Football
Association of country B omitted to pronounce itself in regards to the validity
of the clause in art. 8 of the contract and in turn, limited itself to reject his
request but only because he was not considered a professional.
28.
The Respondent 1 held that according to the contract, there is only an
obligation for him to conclude a subsequent professional contract with the
Claimant, which should be considered as a null and void obligation under
country B’s Labour law. Moreover, the Respondent 1 held that art. 8 of the
contract does not contain an obligation for the Claimant. The Respondent 1
argued that said clause should be analysed under the light of country B’s
Labour law and not country B’s Civil law and/or Swiss Civil law.
Club A, country B / Player C, country B and Club D, country E
5/11
29.
The Respondent 1 argued that art. 8 of the contract should be considered as
null and void and in consequence, he did not have the obligation to conclude
a new contract with the Claimant, on the basis of the following:
1) That according to country B’s Labour law, the obligation to conclude a
professional contract after the expiry of an “apprenticeship contract”
does not exist, but merely the obligation to extend an “apprenticeship
contract”, but since he was 18 years old, this was not possible anymore;
2) That he does not have the obligation to accept the offer of a
professional contract;
3) That art. 8 was included in the “apprenticeship contract” without him
having any saying about the subject.
30.
Moreover, the Respondent 1 held that as the Claimant based its claim on the
compensation to be paid on the basis of art. 8, and this contract expired, it
cannot be considered that he breached the contract within the protected
period.
31.
The Respondent 1 sustained that the Claimant’s request for relief is
disproportionate and abusive, as in any case, and according to country B’s law,
he only should be considered to be liable to pay half of the salaries until the
end of the corresponding year, i.e. 34,583,333.
32.
Finally, the Respondent 1 agreed that the matter should be dealt with by
FIFA’s Dispute Resolution Chamber.
33.
The Respondent 2 rejected the Claimant’s claim after being informed of it. In
this respect, the Respondent 2 explained that it was in fact the Claimant which
did not accept its offer, as allegedly, the payment conditions offered by the
Respondent 2 for the transfer of the Respondent 1 were not accepted by the
Claimant, which caused the negotiations to be stalled as the transfer window
closed. The Respondent 2 held that the Claimant’s “extreme superciliousness
and its unwillingness to agree on the payment dates that prevented it from
transferring [the Respondent 1] to [the Respondent 2]”.
34.
Subsequently, the Respondent 2 argued that, before January 2013, it was
informed by the Respondent 1’s representatives that the contract between the
Respondent 1 and the Claimant had expired and that as a consequence, the
Respondent 1 was free to negotiate with it.
Club A, country B / Player C, country B and Club D, country E
6/11
35.
Furthermore, the Respondent 2 argued that art. 8 established a unilateral
obligation of the Respondent 1 towards the Claimant and that the amount
established in art. 8 of the contract as compensation is disproportionate,
taking into account what the Respondent 1 was earning with the Claimant.
36.
The Claimant submitted its replica, in which it insisted on its previous
arguments and request for relief. Moreover, the Claimant held that the
Respondent 1, by requesting in front of the Football Association of country B
to be released from the Claimant, was automatically breaching art. 8 of the
contract.
37.
Moreover, the Claimant explained that the Respondent 2 intentionally ignored
the Claimant after commencing the negotiations, in order to avoid the
payment of a transfer fee or to pay the compensation clause of the contract.
38.
The Claimant further argued that the Respondent 1 was not out of contract at
any point, as the contract did not expire. The Claimant held that said contract
was drafted in such manner due to country B’s law. Moreover, Club A held that
art. 8 is not a unilateral option, as it imposed a positive obligation to it as well,
in this case, to offer a contract to the Respondent 1, which the Claimant
argued it did on 5 October 2012, by increasing the player’s wages by 25%.
39.
The Claimant insisted that the present matter should be dealt with according
to FIFA regulations and subsidiary Swiss law, due to the fact that an
international party, in this case, the Respondent 2, is involved.
40.
Finally, the Claimant insisted that its request is not disproportionate.
41.
The Respondent 1 submitted his duplica, in which he insisted on his previous
arguments. The Respondent 1 sustained that he rejected the execution of a
unilateral clause, as he considers it null and void.
42.
The Respondent 1 insisted that he was out of contract and free to negotiate
with any other team as of 9 October 2012, and that therefore the Claimant’s
claim should be rejected. However, the Respondent 1 stated that if the
Claimant’s claim is accepted, it should be limited to the amount of 37,500,000,
corresponding to “half of the salaries up until the end of 2012, October to
December”, and if “specificity of sport” is granted, then this concept should be
limited to 171,000,000 which corresponds to the amount paid by Club A over
the legal minimum in “apprenticeship contracts”.
Club A, country B / Player C, country B and Club D, country E
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43.
The Respondent 2 submitted its duplica, where it insisted on its previous
arguments.
II.
Considerations of the Dispute Resolution Chamber
1.
First, 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
15 May 2013. Consequently, the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2012;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
of the 2012, 2014 and 2015 editions of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 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 2015) 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 and a club from country E.
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 (editions 2012, 2014
and 2015), and considering that the present claim was lodged on 15 May 2013,
the 2012 edition of the Regulations on the Status and Transfer of Players
(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 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.
In this respect and first of all, the DRC acknowledged that the Claimant and
the Respondent 1 had concluded a contract, valid as from 2 January 2012 until
8 October 2012, according to which the Respondent 1 was entitled to receive a
monthly salary in the amount of 20,000,000, plus a “complementary annual
Club A, country B / Player C, country B and Club D, country E
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salary” equivalent to 1/12th of the total amount received through the calendar
year.
6.
The Chamber considered the allegations and arguments presented by the
parties involved in the present matter, and it took note that, according to the
Claimant, a breach of contract had been committed by the Respondent 1. In
this regard, the DRC observed that the Claimant sustained that the Respondent
1 failed to comply with the obligation established in art. 8 of the contract,
therefore, breaching the contract without just cause.
7.
In this context, the Chamber underlined that in order to be able to establish
whether, as claimed by Claimant, a breach of contract had been committed by
the Respondent 1, it should first of all pronounce itself on the validity of art. 8
of the contract.
8.
After a careful study of the contract, the Chamber highlighted that art. 8 of
the contract established that, at the expiry of the “apprenticeship contract”,
the Respondent 1 obliged himself to sign a “Professional Sporting Employment
Contract” with the Claimant. Moreover, the members of the Chamber
observed that art. 8 further established that if the Respondent 1 rejected
signing a new contract with the Claimant, the Respondent 1 must pay as
compensation to the Claimant the amount of USD 2,000,000.
9.
Having stated the aforementioned, the Chamber highlighted that the multi
referenced art. 8 consists in an obligation contracted by the Respondent 1 to
sign a subsequent contract with the Claimant at the expiry of the contract
valid until 8 October 2012. Moreover, the DRC took note that a penalty fee
was stipulated in the same article in case the Respondent 1 failed to sign a
subsequent contract with the Claimant.
10.
With the above mentioned background in mind, the Chamber was eager to
highlight that, at the moment of signature of the “apprenticeship contract”,
the conditions of the subsequent contract were not agreed by the parties.
Therefore, the Chamber concluded that the Respondent 1 obliged himself to
sign a subsequent contract, without having prior knowledge of the eventual
contents of said subsequent contract.
11.
The Chamber deemed appropriate to point out that if it were to accept this
clause as valid, it would mean that the Respondent 1 was obliged to sign a
subsequent contract with the Claimant in the future, without being aware of
the conditions set therein. The Chamber was of the unanimous opinion that a
player cannot be obliged to perform the contractual obligations of an
Club A, country B / Player C, country B and Club D, country E
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agreement, if the essentialia negotii of an employment contract, such as the
parties to the contract and their role, the duration of the employment
relationship and the remuneration payable by the employer to the employee
were not clearly established beforehand.
12.
In this regard, the Chamber was of the opinion that the need of an employee
regarding the certainty of the employment was not being given sufficient
consideration. The DRC considered relevant to underline that an employee,
who is generally considered a weaker party in such contract, is entitled to
more clarity and certainty in such relationships.
13.
Moreover, the Chamber expressed its surprise at the disparity of the conditions
stipulated in art. 8 of the contract, where it is foreseen that the Respondent 1
would owe USD 2,000,000 to the Claimant, if he did not sign a new contract
with it. What is more, the Chamber could not discern any substantial benefits
awarded to the Respondent 1 that would compensate him for the significant
restrictions in his freedom to contractually engage with the employer of his
choice.
14.
On account of the above and on the basis of the applicable Regulations as well
as the jurisprudence of the Chamber, the Chamber came to the firm conclusion
that art. 8 of the contract cannot be considered as a valid clause. In
consequence, the Respondent 1 was not obliged to sign a subsequent contract
with the Claimant, as established in art. 8 of the contract.
15.
Moreover, and for the sake of completeness, the Chamber recalled that the
contract contained a clause conditioning the extension of said contract,
notably, that the Claimant had to inform the player 30 days before the expiry
of said contract of its intention to extend it. In this respect, and from the
documentation on file, it can be concluded that the Claimant offered a “25%
increase in [the Respondent 1]’s salary” only on 5 October 2012, i.e. only three
days prior to the expiry of the contract.
16.
On account of all the above circumstances, and in particular, that the
Respondent 1 signed and employment contract with the Respondent 2 in
January 2013, i.e. only after the natural expiry of the contract between the
Respondent 1 and the Claimant on 8 October 2012, and once the obligations
between the Respondent 1 and the Claimant had ceased to exist, in the
Chamber’s view, no breach of contract by the Respondent 1 could be
established.
Club A, country B / Player C, country B and Club D, country E
10/11
17.
The members of the Chamber concluded their deliberations by establishing
that the claim of the Claimant is entirely rejected.
III. Decision of the Dispute Resolution Chamber
1.
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: [email protected] / www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Club A, country B / Player C, country B and Club D, country E
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