Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 10 February 2015,
by Philippe Diallo (France), DRC judge:
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On an unspecified date, the player A from country B (hereinafter player or
Claimant) signed a document entitled “non-amateur football player’s contract”
(hereinafter contract), with the club from country D, Club C (hereinafter club or
Respondent) valid as from 15 February 2012 until 14 May 2012.
2.
Art. 2 of the contract stipulates that the player was entitled to a maximum
monthly remuneration in the amount of 400,000, i.e. EUR 5,741 according to the
player.
3.
On 25 June 2012, the player lodged a claim against the club before FIFA. In said
claim, the player asked that the club be ordered to pay him compensation for
breach of contract in the amount of EUR 5,741 and to reimburse him his visarelated expenses in the amount of EUR 120, as well as unspecified interest on said
amounts.
4.
In his claim, the player explained that after having received an invitation from the
club dated 24 January 2012, he signed a contract and trained with the club during
three days before the club informed him that it had decided to terminate the
contract.
5.
The document the player refers to as an “invitation” is a letter sent by the club to
the embassy of country D in country E, which reads that the club intends to recruit
the player with immediate effect and up and until 31 May 2012. In said letter, the
club further requested the embassy to issue a visa for the player for the whole
duration of his stay.
6.
Reportedly, the club did not give the player any explanation or compensation in
relation to the early termination of the employment contract.
7.
Additionally, on 13 February 2014 and 14 April 2014, the player sent letters to the
club wherein he informed the club that he refused the termination of his contract
and warned the club that should he not hear from it within the next 8 days, he
would lodge a claim against it. According to the player, the club did not react to
said letters.
8.
In its reply to the claim, the club asserted that the player is acting out of bad faith
and rejected all his arguments. In particular, the club underlined that the
document submitted by the player is only a non-binding draft and stressed that it
is neither dated nor does it bear the player’s signature.
9.
In this respect, the club explained that as it wanted to invite the player for a trial,
and not to sign a contract right away as put forward by the player, the draft of the
Player A, country B / Club C, country D
2
contract at hand was scanned and sent by email to the player upon his request and
for his perusal.
10.
Another copy of said draft was sent to the embassy along with the abovementioned “invitation” letter in order to start processing the visa formalities.
11.
In continuation, the club referred to an email dated 24 January 2012 it supposedly
sent to the player’s alleged representative which inter alia reads: “[w]e have sent
the Invitation Letter for Visa to the Embassy of country D in country E, along with
other relevant documents. Please note the contract copy is solely for the purpose
of obtaining Visa and is no way binding on either party.”
12.
Besides, the club held that the draft at hand does not qualify as a valid
employment contract under the country D Contract Act 1872 as it is not signed by
both parties.
13.
Moreover, the club pointed out that the draft at hand was never transmitted to
any authorities for registration and no International Transfer Certificate was ever
asked or issued in relation to the player.
14.
As to the circumstances of what the player described as the termination of the
contract, the club firstly held that the player knew that he was going through a
trial phase with the club.
15.
Afterwards, and since the club found the player “unfit” and “unsuitable” for the
club, it decided not to recruit him.
16.
In relation to the player’s claim for reimbursement of his alleged expenses, the
club held that it paid for all the player’s expenses during his stay in country D and,
in particular, reimbursed him 6,955 in relation to his visa fees.
17.
Finally, the club asserted that it answered to the player’s letters and denied all the
allegations contained therein.
18.
Upon request, the player informed FIFA that he did not sign any employment
contract with any football club during the dates of validity of the contract at hand.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
matter at hand. In this respect, he took note that the present matter was
submitted to FIFA on 25 June 2012. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
Player A, country B / Club C, country D
3
(edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand
(cf. article 21 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 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 (edition 2014), he 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 an club from country D.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2014), and considering that the present claim was lodged on 25 June 2012,
the 2010 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this
respect, the DRC judge started by acknowledging all the above-mentioned facts as
well as the arguments and the documentation submitted by the parties available
on file. However, the DRC judge emphasised that in the following considerations
he will refer only to the facts, arguments and documentary evidence, which he
considered pertinent for the assessment of the matter at hand.
5.
In this context, the DRC judge firstly recalled that whereas the player claimed that
the club unilaterally terminated the contract that was signed by the parties
without any explanation and only three days after the parties started to execute it,
the club, for its part, contended that no valid contract was ever signed between
the parties and that the player only trained with the club for several days as part
of a trial phase preceding his hypothetical recruitment, which was not confirmed.
6.
Having recalled the aforementioned, the DRC judge highlighted that the
underlying issue in this dispute, considering the conflicting position of the parties,
was to determine as to whether a valid and binding employment contract was
concluded between the parties and, in the affirmative, whether said contract had
been unilaterally terminated with or without just cause and which party was
responsible for the early termination of the contractual relationship in question.
7.
The DRC judge also underlined that, subsequently, if it were found that the
employment contract was terminated without just cause, it would be necessary to
determine the consequences for the party that was responsible for the early
termination of the contractual relation.
8.
In this context, and reverting to the first question of the validity of contract at
hand, the DRC judge initially stressed that in order for an employment contract to
Player A, country B / Club C, country D
4
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 employment
contract, such as the parties to the contract, their role, the duration of the
employment relationship and the remuneration.
9.
In this respect, the DRC judge noted that if it is true that at first, the copy of the
contract the player submitted in support of his claim against the Respondent
before FIFA did not bear his own signature, the player, upon request, submitted a
copy of said contract bearing the signature of both parties involved in the dispute
at hand. Hence, the DRC judge formed the belief that the player’s first submission
of an unsigned copy of the contract at stake rather consisted of an oversight than
a malicious intention to lodge a claim on the basis of contractual terms he never
accepted.
10.
In particular, the DRC judge considered that the aforementioned position is
confirmed by the undisputed fact that back in January 2012, and following the
receipt of a copy of the contract at stake signed by the Respondent as well as of an
invitation to join the club, the Claimant did travel to country D to join the
Respondent, thereby starting the execution of his obligations under the
employment contract.
11.
Furthermore, and after careful study of the terms of the contract presented by the
Claimant, the DRC judge could verify that all other aforementioned essential
elements are included in the document subject to examination.
12.
In particular, the DRC judge noted that the contract establishes that the Claimant
has to render his services towards the Respondent for a determined period of time,
i.e. as from 15 February 2012 until 14 May 2012, the latter in counterpart having to
pay to the Claimant a monthly remuneration in the amount of 400,000.
13.
Also, the DRC judge held that the absence of any signature date, although
somewhat unusual, was not depriving the contract at hand of an essential element
that would render it null and void.
14.
Having so found, the DRC judge continued his deliberations by taking into account
the Respondent’s additional arguments that it only sent a signed version of the
contract at stake to the player’s representative and to the Embassy of country D in
country E so as to permit the player to be granted a Visa to travel to country D and
that said signed copy of the contract had been transmitted “solely for the purpose
of obtaining a Visa and is in no way binding on either party.”
15.
In this respect, the DRC judge found that the wording of the invitation the
Respondent refers to and which was transmitted to the Claimant as well as to the
Embassy of country D in country E does not contain any information that could
have enabled the Claimant to understand that the club’s genuine intention to
Player A, country B / Club C, country D
5
recruit him was in fact not definitive but depending on the successful completion
of a trial phase.
16.
Indeed, and after a careful analysis of the content of said invitation, the DRC judge
noticed that said document reads that the Respondent “intend[s] to recruit the
[player] (…) with immediate effect and upto 31st May 2012” (emphasis added) and
that it will assist the player in relation to the needs “he may require during the
period of his stay in country D, in the fulfilment of his Non-Amateur contractual
obligations with [the] Club” (emphasis added).
17.
Furthermore, the DRC judge noted that said invitation letter contains a request
addressed to the relevant authorities to issue a Visa for the player, so as to, once
more, “enable him fulfill his contractual obligations with [the] Club.”
18.
In view of the above, the DRC judge held that on the basis of the wording of said
invitation, the Claimant could only, and legitimately, understand that the club had
decided to recruit him, without any delay or any conditions.
19.
What is more, the DRC judge also pointed out that the email the Respondent
referred to in its answer to the player’s claim (cf. point I.11. above) was apparently
not directly sent to the player himself but if, at all, to a company and to an
individual whose relationship with the player have been left unproven by the
Respondent.
20.
Accordingly, and bearing in mind the contents of art. 12 par. 3 of the Rules, which
provides that any party claiming a right on the basis of an alleged fact shall carry
the burden of proof, the DRC judge held that on the basis of the documentation
available on file, it could not be considered that said email, and the information it
contained, was ever received by the Claimant.
21.
As a consequence, the DRC judge rejected the Respondent’s argument that the
player had been made aware that the signed copy of the contract sent out by the
club was solely issued to enable the Claimant to be granted a Visa and was not to
be seen as a binding employment contract between said parties.
22.
Having so found, the DRC judge turned his attention to the Respondent’s
arguments that the contract signed with the player would be invalid as a result of
the absence of registration thereof or because the club never requested the
issuance of any International Transfer Certificate (ITC) for the player.
23.
In this respect, the DRC judge considered relevant to recall its longstanding and
well-established jurisprudence in accordance with which the validity of an
employment contract cannot be made conditional upon the execution of
(administrative) formalities, such as, but not limited to, the registration procedure
in connection with the international transfer of a player, which are of the sole
responsibility of a club and on which a player has no influence.
Player A, country B / Club C, country D
6
24.
In this regard, the DRC judge pointed out that it is the responsibility of the
engaging club to ensure that the player is properly registered with his new club in
order to be able to provide it with his services. Since one club is supposedly
interested in acquiring the rights of the player and in benefiting from his services,
it is also expected from it that it acts accordingly in view of obtaining the player’s
ITC and his subsequent registration.
25.
Applying that reasoning to the matter at hand, the DRC judge held that the
absence of registration of the contract at stake did not have any impact on its
validity and, consequently, the Respondent’s argumentation in this regard could
not be upheld by the DRC judge.
26.
Additionally, and as regard the Respondent’s specific argument that no ITC was
ever asked in connection with the player’s recruitment, the DRC judge wished to
add to the foregoing that since, according to Annexe 3 of the Regulations, an ITC
request depends on the new club’s application to the new association to register a
professional, the club is actually in the position to prevent the occurrence of the
condition precedent of receipt of an ITC by willfully choosing not to proceed with
the application for an ITC request. For the sake of completeness, the DRC judge
further recalled that, by analogy, the same applies to the finalisation of documents
or procedures related to the transfer of a player, e.g. the signature of a transfer
agreement or the payment of a transfer compensation.
27.
For the above-mentioned reasons, the DRC judge decided to reject the
Respondent’s arguments that the absence of registration of the employment
contract at hand and/or the absence of ITC request for the player rendered the
contract signed with the latter null and void.
28.
Having found that the document signed by both parties indeed consisted of a valid
and binding employment contract, the DRC judge turned his attention to the
circumstances surrounding the Respondent’s termination thereof and which,
according to the Respondent itself, was taken on the basis of the player’s
unsatisfactory fitness level and unsuitability for the club.
29.
In this regard, the DRC judge analysed that such assessment of the player’s profile
was eminently subjective and to the entire discretion of the club.
30.
In the light of such potestative character of the pertinent assessment, the DRC
judge found that the reasons set forth by the club to unilaterally put an end to the
player’s employment do not constitute a reason that can be validly invoked nor a
legal basis to unilaterally terminate the contract. Consequently, the Chamber
rejected the Respondent’s argument in this respect.
Player A, country B / Club C, country D
7
31.
For all of these reasons, the DRC judge decided to reject the Respondent’s
arguments and determined that the Respondent terminated the contract signed
by the Claimant and the Respondent without just cause.
32.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the DRC judge
focussed his attention on the consequences of such breach of contract. Taking into
consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the
Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract in addition to any outstanding payments, if
any, on the basis of the relevant contract.
33.
The DRC judge therefore reverted to the Claimant’s financial claim, which included
a request for compensation for unlawful breach of contract, the reimbursement of
expenses and the application of an unspecified interest on the respective amounts
composing the two aforementioned claims.
34.
Against such background, the DRC judge thus focussed his attention on the
calculation of the amount of compensation for breach of contract in the case at
stake. In doing so, the DRC judge firstly recapitulated that, in accordance with art.
17 par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the
specificity of sport and further objective criteria, including, in particular, the
remuneration and other benefits due to the Claimant under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls
within the protected period.
35.
In application of the relevant provision, the DRC judge held that it first of all had
to clarify as to whether the pertinent employment contract contains a provision by
which the parties had beforehand agreed upon an amount of compensation
payable by either contractual party in the event of breach of contract.
36.
After a careful review of the contractual terms, the DRC judge established that no
such compensation clause was included in the employment contract at the basis of
the matter at stake.
37.
As a consequence, the DRC judge determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of
the other parameters set out in art. 17 par. 1 of the Regulations. The DRC judge
recalled that said provision provides for a non-exhaustive enumeration of criteria
to be taken into consideration when calculating the amount of compensation
payable. Therefore, other objective criteria may be taken into account at the
discretion of the deciding body.
Player A, country B / Club C, country D
8
38.
Reverting to the Claimant’s claim, the DRC judge took into account that the latter
claimed the amount of EUR 5,741 as compensation for breach of contract, which
amount corresponds to one monthly salary of the pertinent employment contract.
39.
Furthermore, the DRC judge noted that the Claimant remained unemployed until
at least 14 May 2012, i.e. the date of expiry of the parties’ contract.
40.
In view of all of the above, and bearing in mind art. 17 par. 1 of the Regulations as
well as the circumstances of the case, the DRC judge decided that the Respondent
must pay the amount of EUR 5,741 to the Claimant as compensation for breach of
contract.
41.
In continuation, the DRC judge turned his attention to the Claimant’s claim for
reimbursement of his alleged Visa-related expenses in the reported amount of EUR
120.
42.
In this respect, and first of all, the DRC judge referred again to the contents of the
aforecited art.12 par. 3 of the Rules and stressed that the player did not present
any document supporting this specific claim.
43.
What is more, the DRC judge was eager to point out that the Respondent, for its
part, submitted evidence that it paid an amount of EUR 105 to the player in
connection with the latter’s expenses relating to his stay in country D and in
connection with his Visa-related fees.
44.
In light of the above, the DRC judge held that the Claimant’s claim for the
reimbursement of his unsubstantiated expenses was to be rejected.
45.
Finally, and taking into account the Claimant’s request, the DRC judge decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the amount
of compensation as of the date on which the claim was lodged, i.e. 25 June 2012,
until the date of effective payment.
46.
In light of all of the above, the DRC judge decided to partially accept the
Claimant’s claim and that the Respondent has to pay to the Claimant the amount
of EUR 5,741 as compensation for breach of contract plus 5% interest p.a. on said
amount calculated as from 25 June 2012 until the date of effective payment.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 5,741 plus 5% interest p.a.
as from 25 June 2012 until the date of effective payment.
Player A, country B / Club C, country D
9
3.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
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 DRC judge:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
10