Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Theodore Giannikos (Greece), member
on the claim presented by the player,
Player A, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 15 April 2013, the player from country B, Player A born on 17 March 1995
(hereinafter: the Claimant), lodged a claim against the club from country D, Club
C (hereinafter: the Respondent), alleging that he signed an employment contract
with said club.
2.
To its claim, the Claimant enclosed a copy of an undated document drafted on the
club’s letterhead and named “Contract Proposal” only signed by the club, with
the following content:
“Club C proposes a contract for 3 seasons as from the 18th birthday of the player,
as from 17.03.2013 with the following financial conditions:
Monthly salary:
First season (2012/2013 as from 18.03.2013)-›6.000 euro net per month
Second season (2013/2014) -› 7.000 euro net per month
Third season (2014/2015) -› 8.000 euro net per month
Signature fee:
20.000 euro to be paid as soon as all the transfer documents are available such
as ITC (International Transfer Certificate)
Additional fees:
(…)
Advantages:
A furnished apartment
A car leased by the club
4 flight tickets per season
For Club C
Player A
The player”
3.
Having been asked by the FIFA administration to provide a copy of the abovementioned document signed by both parties, the Claimant, on 22 April 2013,
provided FIFA with a copy signed by both parties.
4.
The Claimant explained that the Respondent had offered him a contract for 3
seasons “to be signed on March 17, 2013, date in which the athlete will comply 18
years old, and, therefore, will not be subject anymore to the deterrent provided in
article 19.1 of the FIFA Regulations on the Status and Transfer of Players.”
Player A, from country B / Club C, from country D
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5.
The Claimant further stated that “The conditions of the future contract to be
signed were duly established in the pre-contract signed between the parties,
which was elaborated precisely by the [club], and presented to the [player].”
6.
On 8 January 2013 and upon request of the Respondent, the Claimant travelled to
country D, according to him to “present himself to the club and start the training
even before complying 18 years, with the aim of, with that, expediting his
adaption and, at the same time, prevent the eventual harassment of other clubs.”
The Claimant stated that it was verbally agreed that, for the months of January
and February 2013, he would receive 50% of the monthly salary for the first year,
i.e. EUR 3,000.
7.
Subsequently, after having trained with the Respondent for around 50 days, the
Claimant indicated that he was dismissed by the Respondent and had to leave
country D by 27 February 2013, without receiving any salary and without any
further information.
8.
On 4 March 2013, the Respondent informed a certain Mr X that the Claimant had
“some adaption problems and did not succeed to encounter the club and trainer
requirements. Therefore, the contract proposals (…) are no longer subject to any
officialization either for you nor the player. The contract proposals are thus void
and cancelled.”
9.
On 12, 20 and 27 March 2013, the Claimant requested the fulfillment of the
contract, which allegedly remained without reply. Therefore, he terminated the
contract in writing on 1 April 2013, invoking just cause.
10.
In particular, the Claimant held that:
-
-
-
11.
The “Contract Proposal” has all the main elements which “compose a
negotiation for the hiring of a player by a club (…). The document, it
must be noted, had even a designated place for the Claimant’s signature”.
There was a verbal agreement for January and February 2013. Since he
was hired on 8 January 2013 and fired on 27 February 2013, the club owes
him EUR 5,000 as outstanding remuneration plus 5% interest as from the
due dates.
The dismissal was without just cause and therefore the Respondent has to
pay him EUR 201,000 as compensation for breach of contract plus 5%
interest.
Sporting sanctions must be imposed on the Respondent.
The club has to pay for his legal costs.
In reply to the claim lodged against it, the Respondent explained that it was
agreed with the Claimant that he could “complete a trial period and tests with a
view of (thereafter) potentially hiring him on an employment contract with [the
Player A, from country B / Club C, from country D
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Respondent].” In order to show its interest in the future sporting career of the
Claimant, the Respondent, on 7 December 2012, sent the Claimant and his agent a
proposal for an employment contract containing the signature of the Respondent,
however, neither the agent, nor the Claimant nor his legal representative
“endorsed this contractual offer.”
12.
The Respondent explained that during the Claimant’s trial, it provided
accommodation, transport, food etc. to the player, however, no salary was agreed
upon. Since the player experienced major difficulties in adjusting, he expressed his
desire to return to country B, to which the club agreed. Therefore, on 27 February
2013, accompanied by the Respondent’s social manager, the Claimant went to the
airport and travelled home.
13.
Furthermore, the club holds that in his claim to FIFA, the Claimant himself
submitted the “Contract Proposal” without his own signature, which proves that
the contract offer was never endorsed in tempore non suspecto. Equally, the
Claimant submitted the “Contract Proposal” without his own signature in his
communications dated 12 March 2013, 20 March 2013 and 27 March 2013. Only
after the Claimant was requested by FIFA to produce a duly signed version by
both parties, he a posteriori signed the offer on 22 April 2013 for the first time.
Hence, no employment contract was signed between the parties at the time.
14.
The Respondent further mentioned that it did reply to the notifications sent in
March 2013 and submitted a letter dated 29 March 2013, in which it, among
others, indicated that the Claimant had never signed the proposal.
15.
However, should the DRC consider the document to be an employment contract,
the Respondent holds that the amount for compensation should be reduced to
around EUR 15,000, since the Claimant found a new club and the contract was
never executed. In any case, the request for EUR 5,000 regarding the months of
January and February 2013 must be rejected, since there was no verbal agreement
in place between the parties.
16.
In a correspondence dated 19 September 2014, the Claimant reverted to FIFA
stating that “one copy of the contract signed by the player was attached to the
case file, and the Respondent always kept a copy duly signed by the player since
the moment of the signature of the document.”
17.
Nevertheless, the Claimant asserts that even if no contract was signed by him, the
fact that the Respondent sent a pre-contact and that he travelled to country D
and started training, shows that he accepted the terms of the pre-contract.
18.
Finally, the Claimant argues that there are no reasons to mitigate the amount of
compensation for breach of contract and that one should consider that he was
young, talented and interrupted his promising career to go to country D.
Player A, from country B / Club C, from country D
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19.
In its final comments, the Respondent reiterated its previous position.
20.
Upon request, the Claimant indicated that he signed the following two contracts
after his departure from country D:
- With Club Y as from 1 September 2013 until 1 September 2014, which was
terminated by mutual consent on 15 May 2014, receiving a monthly salary
of 1,200.
- With Club Z on loan from 29 April 2014 until 13 May 2014, also receiving
a monthly salary of 1,200.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
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 April 2013. Consequently, the 2012 edition 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. article 21 of
the 2012 and 2014 edition 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 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2014), 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 player from country B and a club from country
D.
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 (edition 2012 and 2014) and
considering that the present claim was lodged in front of FIFA on 15 April 2013,
the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber started
by acknowledging the above-mentioned facts as well as the documentation
contained in the file. 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.
Player A, from country B / Club C, from country D
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5.
In this respect, the Chamber acknowledged that the Respondent sent a document
named “Contract Proposal” to the Claimant by means of which the Respondent
offered a contract to the Claimant for 3 seasons.
6.
According to the “Contract Proposal”, the parties established, among other
details, that the employment would run for 3 seasons and that the Claimant
would be entitled to receive, inter alia, a signing-on fee of EUR 20,000 and a
salary of EUR 72,000 for the first season, EUR 84,000 for the second season and
EUR 96,000 for the third season. The Claimant maintained that, in fact, an
employment contract had been entered into between the parties and that, as
such, the Respondent is to be held liable for its early termination by having failed
to execute the terms of the employment contract, including the failure to pay the
Claimant’s remuneration.
7.
In this respect, the members of the Chamber took note that on 8 January 2013,
the Claimant travelled to country D, according to the Claimant to expedite his
adaption. However, according to the Respondent, the Claimant travelled to
country D in January 2013 merely to complete a trial period.
8.
In this context, the members of the Chamber acknowledged that the fundamental
disagreement between the Claimant and the Respondent – and the central issue
to the present dispute – is whether the “Contract Proposal” established a valid
and binding employment contract between the parties.
9.
The Chamber noted that according to the Respondent, as opposed to the
Claimant, no legally binding employment contract had come into effect between
the parties, primarily since the employment contract had never been signed by
the Claimant before lodging his claim with FIFA. In fact, the Respondent held that
the first time that the Claimant had signed the contract was when he was
requested by FIFA to provide a duly signed copy of the “Contract Proposal”.
10.
The Claimant insisted however that he had signed the “Contract Proposal” and
stated that “the conditions of the future contract to be signed were duly
established in the pre-contract signed between the parties, which was elaborated
precisely by the [Respondent], and presented to the [Claimant]”. Notwithstanding
the foregoing, even if no contract was signed by him, the Claimant emphasized
that the fact that the club sent a pre-contact and that he travelled to country D
and started training, showed that he accepted the terms of the pre-contract.
11.
Consequently, the Chamber, first and foremost, focused its attention on the
question as to whether a legally binding employment contract had been
concluded by and between the Claimant and the Respondent.
12.
In this regard, the Chamber recalled that in order for an employment contract to
be considered as valid and binding, apart from the signature of both the
employer and the employee, it should contain the essentialia negotii of an
Player A, from country B / Club C, from country D
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employment contract, such as the parties to the contract and their role, the
duration of the employment relationship and the remuneration. However, the
Chamber concluded that it was not necessary to examine whether the “Contract
Proposal” indeed contained all the essentialia negotii since, after having analysed
the timeline of the present matter as well as the documentation provided by both
parties, the Chamber came to the unanimous conclusion that the Claimant had
not been able to prove that he had indeed signed the “Contract Proposal”, prior
to lodging his claim in front of FIFA.
13.
The Chamber was comforted in its conclusion by three elements: i) the “Contract
Proposal” submitted by the Claimant to FIFA on 15 April 2013 did not contain the
player’s signature, ii) the notifications sent to the Respondent on 12 March 2013,
i.e. the first time the Claimant formally contacted the Respondent, also only
contained the “Contract Proposal” exclusively signed by the club, and iii) the fact
that on 29 March 2013, the Respondent had already replied to the Claimant that
the latter never signed the “Contract Proposal”.
14.
On account of all of the above, the members of the Chamber concluded that, by
failing to prove that he signed the relevant “Contract Proposal” prior to lodging
his claim in front of FIFA, the Claimant had failed to prove that the parties had
entered into a valid and legally binding employment contract. As such, the
Chamber decided to reject the claim of the Claimant in relation to the “Contract
Proposal”.
15.
As to the alleged verbal agreement reached between the parties regarding the
months of January and February 2013, the Chamber referred to art. 12 par. 3 of
the Procedural Rules, which states that any party claiming a right on the basis of
an alleged fact shall carry the burden of proof. In view of the fact that the
Respondent rejected that any verbal agreement for January and February 2013
had been agreed with the Claimant as well as considering that the Claimant had
not provided any documentation in this respect, the Chamber was also unanimous
in its opinion that the Claimant had not been able to prove that a verbal
agreement was in place for the months of January and February 2013. As a result,
the Chamber decided to also reject this part of the claim of the Claimant.
16.
The Chamber concluded its deliberations be rejecting any further claim lodged by
the Claimant.
*****
Player A, from country B / Club C, from country D
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player A, from country B / Club C, from country D
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