Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 25 January 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Tom is lav Kas alo (Croatia), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 1 July 2016, the Player of Country B, Player A (hereinafter: the player or
Claimant) and the Club of Country D, Club C (hereinafter: the club or Respondent)
concluded an employment contract (hereinafter: the contract), valid as from 1 July
2016 until 30 June 2017, as well as a document referred to as ‘schedule’
(hereinafter: the schedule). Furthermore, the contract contains an option for
extending the contract for two more years.
2.
According to the contract and the schedule, for the 2016/2017 season, the player is
entitled to receive inter alia the following amounts:
-
a gross monthly salary of 50,000, according to the player equalling to USD
3,797.32;
-
a sign-on fee of 200,000, according to the player equalling to USD 15,189.28.
3.
Article 17 par. 2 of the contract holds the following clause: ‘If the footballer refuses
to attend work, training, or a match, the principle of ‘no work, no pay’ will apply
quite apart from other sanctions that the club may be entitled to apply’.
4.
Article 19 of the contract, ‘Dispute Resolution’, contains the following clause: ‘19.1:
All disputes arising out of or relating to this contract, including disputes as to the
meaning or interpretation of any provision of this contract or as to the carrying into
effect of any such provision or as to the termination or consequences of termination
shall be referred to Dispute Resolution in accordance with the Football League J
rules from time to time. 19.2 The parties warrant that, in accordance with the
football rules, any and all disputes of whatsoever shall be determined in accordance
with the Football League J rules and in the Dispute Resolution Tribunals of the
Football League J rather than before any court or other tribunal insofar as it is a
requirement of FIFA and other footballing rules that the International dispute
resolution mechanisms available in football should be utilised by participants in the
game save where the football rules do not provide an appropriate tribunal to
determine the dispute’.
5.
On 14 January 2017, the player and the club signed a document, referred to as
‘termination agreement’, according to which the player and the club ‘have mutually
agreed to terminate his employment contract with immediate effect’ (hereinafter:
‘the termination agreement’). Further, the termination agreement provided for the
following: ‘it is agreed that Club C will pay 250 000. The amount represent a
settlement in full and final, and Club C has no further obligation to PLAYER A’.
Player A, Country B / Club C, Country D
Page 2 of 12
6.
On 23 February 2017, the player lodged a claim against the club in front of FIFA,
requesting that the club has to be ordered to pay the following amounts to the
player:
-
300,000 as compensation for breach of contract, corresponding to the
residual value of the contract in the period between January and June 2017,
corresponding to six monthly payments of 50,000 each, plus 5% interest p.a.
as of the date of the ‘arbitration decision’;
-
an unspecified amount of ‘general damages’;
-
‘special damages’ in the amount of ‘USD 458.289’, as reimbursement of the
costs of a flight ticket from City E, Country D, to Country B.
In addition, the player asked to be awarded ‘20% interest on all expenses,
outstanding remunerations and allowances’, as from the respective due dates.
Finally, the player requested for sporting sanctions to be imposed on the club.
7.
In his claim, the player explains that on 14 January 2017, he was ‘summoned to the
club’s offices in Football Stadium F’, where he was informed by the club that it
wished to terminate the contract. According to the player, the CEO of the club, Mr
CEO G, ‘brought a certain document’ to him to sign ‘and walked in with two men
who were armed with guns’. The player further explains that these men threatened
him ‘to sign the document, and after he did, they left’. Also, the player indicates
that he ‘grabbed his copy of the employment contract and ran out of the office,
leaving the CEO inside’.
8.
Further, the player explains that immediately after the incident, he reported the
matter to the police, and returned to the stadium with two police officers. Upon
being informed about these circumstances, the president of the club, Ms President
H, returned to the stadium, and ‘after a short discussion’, ‘printed out a termination
agreement, which the [player] was made to sign and one of the officers as a
witness’. According to the player, the termination agreement stipulated that he was
entitled to an amount of 250,000, which he understood to be a settlement of the
outstanding sign-on fee, as this amount was already outstanding for a long period.
9.
In addition, the player explains that on an unspecified date, ‘the chairperson of the
club’ drove to his hotel and forced him to write a note on the letterhead of the
club, ‘stating that he had no issues with the club and that the club treated him
well’. In this respect, the player submitted a handwritten note, on plain paper,
stating: ‘To Chairpersons of Club C, President H. This is to state my disappointment
on the news claiming that you had me threated. This is all incorrect, in fact, I am
grateful to you and everything you have done for me. The termination agreement I
Player A, Country B / Club C, Country D
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signed is correct and I wasn’t forced to sign it. I did this willingly and I have been
paid everything due to me. I wish to state my apologies for everything. Player A’.
10.
Subsequently, the player holds that ‘the matter was widely reported in the media
on diverse dates, including the 14th of January, when the unfortunate incident took
place’.
11.
Moreover, the player explains that on an unspecified date, he left Country D and
that on 25 January 2017, he received a clearance letter from the club, allowing him
to join any team of his choice.
12.
In addition, the player argues that on 31 January 2017, his legal representative
contacted the club, informing it that the termination of the contract was made
under ‘undue influence and duress’ and inter alia requesting the payment of an
amount of 300,000 as compensation for breach of contract.
13.
Furthermore, the player explains that Ms President H, in a letter dated 18 February
2017, informed him that the dispute needs to be solved by a Disciplinary Committee
‘set up by the club itself’, and confirmed that she indeed instructed the player to
write down a statement. On 20 February 2017, the player denied this option and
indicated that he was afraid to go back to Country D, as well as that he had the
opinion that the Committee would not be impartial.
14.
In its reply to the claim of the player, the club contests FIFA’s competence to deal
with the matter at hand, as it holds that the ‘Dispute Resolution Chamber of the
Football League J (hereinafter: the NDRC of Country D) and/or the statutory
employment tribunal, the Commission for Conciliation Mediation and Arbitration or
the Courts’ should be competent.
15.
The club submitted a copy of the ‘Football League J Handbook – as adopted on 15
November 2016’, which apparently was most recently amended on 19 December
2016 and clarifies that the there is an explicit arbitration clause in the contract, as
well as that the NDRC of Country D is established at national level and is an entirely
independent judicial tribunal, which respect fair proceedings and the principle of
equal representation. Moreover, the club explains that there is ‘a collective
agreement in place, requiring compliance with the Rules of the Football League J’.
What is more, the club explains that in the most recent version of the rules for the
NDRC of Country D, the issue that the chairman was chosen ‘by a committee that
represent a body (the Football League J) composed of exclusively clubs’, and the fact
that the player ‘had pay a fee to refer a matter’, were formally ‘addressed’.
16.
Moreover, the club deems that there is no international dimension to the current
dispute, as the ‘employment dispute’ itself is limited to Country D and Law of
Country D.
Player A, Country B / Club C, Country D
Page 4 of 12
17.
As to the substance, the club holds that there is no dispute between the parties, as
both signed the termination agreement dated 14 January 2017.
18.
In relation to the events apparently occurred, Ms President H, on behalf of the club,
explains that on 14 January 2017, she received a phone call from the police, with
the instruction to come to the club’s stadium. Upon arriving at the stadium, Ms
President H states that she met the player, as well as the two police officers, and
listened to the player’s story as to the alleged events occurred.
19.
In this respect, Ms President H holds that the player told her that he refused to sign
the document the CEO gave him, as ‘he had no problem with terminating his
contract’, but that he could not agree with the fact that two man ‘had a gun,
pointed it at him and motioned him to sign’. According to Ms President H, the
player did not sign the document, but took it and went to the police.
20.
After the conversation with the player, Ms President H holds that – in order to avoid
negative publicity and because she had a good relationship with the player – she
negotiated on the phone with the agent of the player on a termination agreement.
During the negotiations, Ms President H holds to have found out that the player’s
agent already negotiated with the club’s CEO on a termination agreement, but that
they could not agree on the conditions. Moreover, after some negotiations on 14
January 2017, Ms President H holds that the club and the player agreed upon a
termination agreement, as well as the payment of the amount of 250,000.
According to Ms President H, said amount was transferred immediately via ebanking to the player, who confirmed receipt of the money while still being in the
club’s offices, in the presence of one of the police officers.
21.
In relation to the conversation between the club’s CEO and the player, Ms President
H explains that the CEO only provided the player with a draft of a termination
agreement, which was not signed by the player, who only took a picture of it. In
relation to the allegations that two man had threatened the player, according to Ms
President H, the CEO told her that there were, ‘for a very short time‘, two man in
the office, looking for replica jerseys. As such, the club denies all allegations that
the player was threatened with a gun.
22.
Moreover, after Ms President H found out that some reports were published on
social media about the alleged events occurred in the club’s offices on 14 January
2017, she contacted the player and met him later that day (14 January 2017) at the
apartments of the club, where the player was at that moment. Ms President H hold
that she instructed the player ‘to write that I had not threatened him’, which the
player did. In addition, Ms President H holds on 16 January 2017, she received a text
message, in which he thanked her for everything she had done for him. In addition,
Ms President H argues that the player himself asked for the clearance certificate.
Player A, Country B / Club C, Country D
Page 5 of 12
23.
Furthermore, Ms President H points out that she contacted the Police of Country D,
in order to find out whether an official complaint was filed by the player. In this
respect, according to MS President H, the police told her that ‘no charges have been
laid and that they could not provide me with any statements or information’.
24.
In conclusion, Ms President H states that – given the different versions of the story –
the only way to find out what really happened was to hold a hearing, in which all
parties could state their version of the events. However, according to Ms President
H, the player did not wish to do so.
25.
Finally, Ms President H points out, on behalf of the club, that the player’s claim
should be declared inadmissible, or in the alternative, rejected in full.
26.
Despite being invited to do so, the player did not timely submit his replica. In
particular, the player was provided a deadline until 9 July 2017 to submit his replica,
however a reply dated 21 July 2017 was only received on 24 July 2017.
27.
After being invited to do so, the player informed FIFA that on 1 March 2017, he
signed an employment contract with the Club of Country K, Club L, valid as from 1
March 2017 until 31 December 2017 and provided a copy of said contract. Based on
this document, the player is entitled to receive a monthly salary of USD 1,600. For
period between 1 March 2017 and 30 June 2017, this amounts to the total amount
of USD 6,400 (approximately 83,340).
II.
Cons iderations of the Dis pute Res olution Cham ber
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 23 February
2017. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (2017 edition; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 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 par. 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (2018 edition) the Dispute Resolution Chamber is, in principle, competent to
deal with employment-related disputes with an international dimension between a
Player of Country B and a Club of Country D.
Player A, Country B / Club C, Country D
Page 6 of 12
3.
Furthermore, the Chamber was eager to emphasize that contrary to the information
contained in FIFA’s letter dated 18 January 2018 by means of which the parties were
informed of the composition of the Chamber, the member Roy Vermeer and the
member Daan de Jong refrained from participating in the deliberations in the case at
hand, due to the fact that the member Roy Vermeer wished for personal reasons, not to
take part in the deliberations of the matter at hand and that, in order to comply with
the prerequisite of equal representation of club and player representatives, also
the member Daan de Jong refrained from participating and thus the Dispute Resolution
Chamber adjudicated the case in presence of three members in accordance with art. 24
par. 2 of the Regulations.
4.
Furthermore, the members of the Chamber who took part in the adjudications,
however, acknowledged that the club contested the competence of FIFA’s deciding
bodies first on the basis of an alleged lack of international dimension to the dispute
since the player was playing in Country D and concluded a contract with a club
based in Country D. The DRC noted that the club considered that, in light of
national law, the dispute between the club and the player falls within the scope of
Law of Country D.
5.
With regard to the argument of the club that the present matter was not one of an
international dimension, the Chamber underlined that in accordance with the
documentation on file provided by both parties, the player is a Citizen of Country B
and holder of a Country B Passport. In absence of any objective evidence that the
player holds another nationality, the international dimension is established by
means of the player’s Country B Passport. The fact that the player concluded a
contract with a Club of Country D and played in Country D does not give the
dispute a national dimension. Thus, the Chamber concluded that the present
dispute had an international dimension and the DRC is in principle competent to
deal with it in accordance with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players.
6.
In continuation, the members of the Chamber took note that the club also
contested the competence of FIFA’s DRC on the basis of art. 19 of the contract,
alleging that the player should have addressed his claim to the NDRC of Country D
in Country D.
7.
In this respect, the Chamber took into account all of the above and sought to
emphasise that in accordance with art. 22 lit. b) of the Regulations on the Status
and Transfer of Players (2012, 2014, 2016 and 2018 editions) it is competent to deal
with a matter such as the one at hand between a Club of Country D and a Player of
Country B, unless an independent arbitration tribunal guaranteeing fair
proceedings and respecting the principle of equal representation of players and
clubs has been established at national level within the framework of the association
and/or a collective bargaining agreement. With regard to the standards to be
Player A, Country B / Club C, Country D
Page 7 of 12
imposed on an independent arbitration tribunal guaranteeing fair proceedings, the
Chamber referred to the FIFA Circular n° 1010 dated 20 December 2005. Equally, the
members of the Chamber referred to the principles contained in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force
on 1 January 2008.
8.
In relation to the above, the Chamber also deemed it vital to outline that based on
the contents of art. 9 par. 1 and art. 12 par. 3 of the Procedural Rules, the party
contesting the competence of FIFA’s deciding bodies, needs to provide sufficient
documentary evidence, on the basis of which it could be established that another
deciding body than FIFA’s deciding bodies is competent, and that such other
deciding body complies with the standards of an independent arbitration tribunal
guaranteeing equal representation and fair proceedings.
9.
In view of the foregoing, while analysing whether it was competent to hear the
present matter, the Dispute Resolution Chamber considered that it should, first and
foremost, analyse whether based on the documents provided by the club in its
reply, it could be established that the NDRC of Country D should be competent to
deal with the matter at hand.
10.
Subsequently, the members of the Chamber established that the documentation
provided by the club in support of its objection to FIFA’s competence consists of the
Football League J Handbook, which appears to have been adopted on 15 November
2016 and which apparently was further amended on 19 December 2016. Already at
this point, the members of the Chamber noted that these documents indeed
provide for the regulations of the NDRC of Country D, however only came into force
on 15 November 2016, i.e. after the starting date of the contract between the
player and the club, which already started on 1 July 2016.
11.
In view of the foregoing, the Chamber deemed it unnecessary to analyse the version
of the Football League J Handbook adapted on 15 November 2016, in order to
establish as to whether the NDRC of Country D respected the principle of equal
representation of players and clubs, as said version was not in force at the date the
parties started their contractual relationship and as such, the clauses included in the
contract signed on 1 July 2016, could not refer to deciding bodies and their
composition as mentioned the documents submitted by the club.
12.
For the sake of completeness of its analysis, the DRC referred to the decisions
previously taken by the Chamber in the cases with ref. nr. XXX, ref. nr. XXX and ref.
nr. XXX, in which it indeed analysed the 2012 edition of the regulations of the
NDRC of Country D of 1 August 2012 and finally concluded that such deciding body
did not consist of independent arbitration tribunal guaranteeing fair proceedings
and respecting the principle of equal representation of players and clubs. This has
been confirmed by the Court of Arbitration for Sport (CAS) in the appeal CAS XXX.
Player A, Country B / Club C, Country D
Page 8 of 12
13.
On account of all of the above, the Chamber established that the Respondent’s
objection to the competence of FIFA to deal with the present matter has to be
rejected, and that the Dispute Resolution Chamber is competent on the basis of art.
22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the
present matter as to the substance.
14.
In continuation, the Chamber analysed which edition of the 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 2018), and considering that the present claim was lodged on 23
February 2017, the 2016 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
15.
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 aforementioned facts as well as the
arguments and the documentation submitted by the parties. The Chamber,
however, 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.
16.
In this respect, the Chamber recalled that the parties had signed an employment
contract valid as from 1 July 2016 until 30 June 2017, in accordance with which the
player was entitled to receive, inter alia, a monthly salary of 50,000 as well as a signon fee of 200,000.
17.
Furthermore, the members of the Chamber acknowledged that on 14 January 2017,
the player and the club signed a termination agreement, based on which document
the contract was terminated with immediate effect on 14 January 2017, and which
document further contained a declaration in accordance with which the player
stated that after having received an amount of 250,000, the parties would have
reached a final settlement and it would be established that the club had paid all
the player’s dues, based on the contract (cf. point I./5. above).
18.
In continuation, the Chamber noted that the player alleges that on 14 January 2017,
he was threatened with guns by unknown persons in the club’s offices and forced to
sign a non-specified document, which he did, however being under duress. Further,
the members noted that the player explained that only after reporting this matter
to the Police of Country D, the club’s president, Ms President H offered him to sign a
new document, i.e. the termination agreement, based on which the contract would
be terminated on 14 January 2017 and the club would be obliged to pay him an
amount of 250,000.
Player A, Country B / Club C, Country D
Page 9 of 12
19.
Furthermore, the Chamber noted that the player, while explicitly confirming that he
signed the termination agreement, alleges that the termination of the contract was
made under pressure of the club and under ‘undue influence and duress’. Moreover,
the player alleges that he mistakenly understood that the payment of the amount
of 250,000 was a settlement of the outstanding sign-on fee, and that therefore, he
still is entitled to compensation for breach of contract.
20.
On the other hand, the Chamber took note that the club denied all the player’s
allegations, explaining that the player was never threatened with guns.
Furthermore, the club states that it is of the firm opinion that the termination
agreement in question was signed by the player without any type of coercion
whatsoever and that the player even negotiated, together with his agent, on the
amount to be paid by the club. In addition, the club explained that on the same
day, it paid the amount of 250,000 and that based on the contents of the
termination agreement, the contract was validly terminated and the parties reached
a final settlement. As a result of the foregoing, the club rejects the claim lodged
against it.
21.
Subsequently, the DRC observed that the player, in spite of having been invited to
do so, had, for its part, failed to timely present his replica to the response of the
club within the relevant time limit set by FIFA, i.e. 9 July 2017. In fact, the replica of
the player was only received on 24 July 2017. As a result, bearing in mind the
Chamber’s constant jurisprudence in this regard and in application of art. 9 par. 3 of
the Procedural Rules, the Chamber decided not to take into account the replica of
the player and established that, in accordance with the aforementioned provision, it
shall take a decision on the basis of those documents on file that were provided
prior to the deadline set by FIFA, in casu, on the statements and documents
presented by the player in his claim dated 23 February 2017 and the statements and
documents presented by the club in its responses dated 14 April and 29 May 2017.
22.
In this regard, reiterating the contents of art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof, the DRC took into account that the player failed to
present documentary evidence in support of his allegation that he had been
coerced, by the club, into signing the non-specified document, as well as the
termination agreement on 14 January 2017. In his claim, the player only submitted a
description of the alleged events, however without providing documentary
evidence or further clarifications, on the basis of which it could be established that
the club put the player under pressure in order to sign the non-specified document
and the termination agreement.
23.
What is more, the members noted that the club, on the other hand, explained that
the player and his agent negotiated on the phone with the club’s president about
the contents of the termination agreement, in the end agreeing upon an amount of
Player A, Country B / Club C, Country D
Page 10 of 12
250,000 to be paid by the club. Said circumstances were not further contested by
the player. In addition, the Chamber noted that the club submitted documentary
evidence that it paid an amount of 250,000 to the player on 14 January 2017.
24.
Consequently, based on the foregoing circumstances as well as the documentation
on file, the DRC decided that the player’s allegations that he was forced by the club,
under duress, to sign the termination agreement and the non-specified document,
cannot be accepted and the contract was terminated by mutual consent on 14
January 2017.
25.
With respect to the player’s allegation that he deemed that the amount of 250,000
was a settlement for the outstanding sign-on fee, and as a result of which the
player holds that he is still entitled to compensation for breach of contract, the
Chamber deemed it fit to emphasise that a party signing a document of legal
importance without knowledge of its precise contents, as a general rule, does so on
its own responsibility. Furthermore, the Chamber was of the opinion that the waiver
included in the termination agreement, stipulating that the payment of the amount
of 250,000 would be considered as a settlement ‘in full and final’, is clear and
unambiguous. Consequently, the Chamber concluded that also these arguments of
the player could not be upheld.
26.
Furthermore, as regards the player’s claim pertaining to an unspecified amount of
general damages, the Chamber reiterated the legal principle of the burden of proof
and noted that the player did not submit any evidence of having suffered the
claimed ‘general damages’. In addition, the members of the Chamber noted that
the claimed amount is not specified by the player. As a result thereof, the Chamber
agreed that such claim is to be rejected, due to a lack of legal basis.
27.
Finally, the Chamber decided to also reject the player’s claim for the reimbursement
of the costs of a flight ticket, as the contract did not hold a clause stipulating that
the club is obliged to pay for flight tickets of the player. As such, also this claim of
the player is rejected, due to a lack of legal basis.
28.
In the light of all of the above, and in particular bearing in mind the fact that the
player signed the aforementioned termination agreement with a waiver included in
it, the Dispute Resolution Chamber decided that the claim put forward by the player
is admissible, but has to be rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
Player A, Country B / Club C, Country D
Page 11 of 12
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 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:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D
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