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 club,
Club A, Country B
as Claimant
against the player,
Player C, Country D
as Respondent 1
and the club,
Club E, Country D
as Respondent 2
and the club,
Club F, Country D
as Respondent 3
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
According to the Club of Country B, Club A, (hereinafter: the Claimant), on 14 June
2013, the club and the Player of Country D, Player C (hereinafter: the Respondent 1),
signed an employment contract (hereinafter: the alleged contract), valid from 12 July
2013 until 10 June 2016.
2.
In accordance with the alleged contract, the Respondent 1 was inter alia entitled to
receive a monthly remuneration of 931,000.
3.
On 19 July 2013, the Club of Country D, Club E (hereinafter: the Respondent 2), and
the Club of Country D, Club F (hereinafter: the Respondent 3), concluded a transfer
agreement for the transfer of the Respondent 1, from the Respondent 2 to the
Respondent 3 for a transfer fee of 1,325,000.
4.
On 1 July 2013, the Respondent 1 signed an employment contract with the
Respondent 3, valid as from the date of signature until 30 June 2016, and providing
for a monthly remuneration amounting 10,000.
5.
On 22 August 2013, the Claimant lodged a claim against the Respondent 1, the
Respondent 2 and the Respondent 3, for breach of contract and for inducement to
the breach, respectively. In its claim, the Claimant requested the following:
-
-
Compensation corresponding to the full contractual amount of the alleged
player’s employment contract with the club (35 months = 32,585,000), plus six
months indemnity (6 months = 5,586,000) and interests as from the date of
breach;
A 6 months ban to be imposed on the Respondent 1;
Sporting sanctions to be imposed on the Respondent 2 and Respondent 3;
Legal fees and interests.
6.
In particular, the Claimant explained that on 24 May 2013, it sent a letter to the Club
of Country D, Club G, confirming its interest in the transfer of the Respondent 1. In
the letter, the Claimant authorized Mr H to negotiate the terms and conditions of the
transfer on behalf of the Claimant and recognized a commission for his services.
7.
At the time, the Respondent 1 was engaged on a loan transfer from Respondent 2 to
Club G.
8.
According to the Claimant, the aforementioned letter was answered by the
Respondent 2 on 31 May 2013 in a communication signed by Mr I acting as President
of the Respondent 2. This response informed about the transfer fee for the player,
Club A, Country B / Player C, Country D, Club E, Country D and Club F, Country D
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and also authorized Mr H to negotiate the terms and conditions of the transfer with
the Claimant.
9.
Furthermore, the Claimant asserted that on 14 June 2013, it concluded the alleged
contract with the Respondent 1 for the period commencing on 12 July 2013 and
expiring on 10 June 2016.
10.
In this regard, the Claimant declared that after not having received any further news
from the Respondent 2 in order to complete the transfer, the Claimant sent a new
letter on 19 June 2013 to the Respondent 2 ratifying the offer.
11.
Moreover, the Claimant stated that it sent another letter to the Respondent 2 on 28
June 2013, requesting the signed copy of the transfer agreement.
12.
Consequently, the Claimant sustained that it did not receive further notice from both
the Respondent 1 and the Respondent 2 after allegedly reaching an agreement with
both.
13.
The Claimant stated that the Respondent 1 unilaterally breached the alleged contract
without just cause, as he did not arrive on time in order to start the season, and
entered into more than one employment contract during the same period as the one
signed with the Claimant.
14.
The Claimant further stated that the Respondent 3 induced the Respondent 1 into
breaching the alleged contract with the Claimant by signing a new employment
contract with him.
15.
In his reply, the Respondent 1 rejected the Claimant’s claim.
16.
First, the Respondent 1 stressed the absence of a transfer agreement between the
Claimant and Respondent 2, which according to the Respondent 1 was confirmed by
the conduct of the Claimant, by not uploading the operation into the Transfer
Matching System (hereinafter: TMS).
17.
In this respect, according to the Respondent 1, the letter allegedly signed by the
Respondent 2 on 31 May 2013 was forged.
18.
Furthermore, the Respondent 1 sustained that he never signed an employment
contract with the Claimant, and that the signature appearing on the alleged contract
is a forgery.
19.
The Respondent 1 held that the Claimant was unable to prove the existence of the
alleged contract, as it did not submit proof of contact with and flight tickets for him
or the prior medical test.
Club A, Country B / Player C, Country D, Club E, Country D and Club F, Country D
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20.
Moreover, the Respondent 1 stated that all the alleged communications between the
Claimant, him and Respondent 2, include the intervention of Mr H, representing the
interests of the three parties, with no communications sent by either the Respondent
1 or Respondent 2 directly. First, Mr H was representing the Claimant in its letter
dated 24 May 2013, then, appearing on the letter dated 31 May 2013 now being
authorized by the Respondent 2 to negotiate the supposed transfer and finally, in the
alleged contract as the agent of the Respondent 1.
21.
In its reply, the Respondent 2 also rejected the Claimant’s submission, as it denied
being part of any agreement with the Claimant.
22.
Moreover, the Respondent 2 stated that it did not have any contact with the Claimant
whatsoever, specifically denying it informed the Claimant about the transfer fee
concerning the Respondent 1 and authorizing Mr H to negotiate in the name of the
Respondent 2 the conditions of the alleged transfer agreement, as it never received
any communication from the Claimant.
23.
In addition, the Respondent 2 held that the signature from Mr I acting as President
of Respondent 2 appearing on the letter dated 31 May 2013 was forged.
24.
In its response, the Respondent 3 rejected the Claimant’s claim likewise and produced
the same arguments as the Respondent 1.
25.
Moreover, Respondent 3 held that it never induced the Respondent 1 into breaching
the alleged contract, explaining that in order to sign the player, it had to reach an
agreement with the Respondent 2 and then with Club G, as Club G possessed an
option for the definitive transfer of the Respondent 1 after engaging the latter on
loan from the Respondent 2.
26.
Finally, the Respondent 3 declared that it was never informed by the Claimant of the
alleged contract with the Respondent 1.
27.
On 16 December 2013, the Claimant sent a letter to FIFA requesting the suspension
of the proceedings, due to the possibility of reaching an amicable settlement with
the respondents.
28.
In this respect, on 29 January 2014, FIFA received a letter from the Claimant informing
that a deal could not be reached in order to settle the case amicably. The Respondent
1 and the Respondent 3 sent a letter on 31 January 2014 communicating the same
information.
29.
Although requested several times by FIFA to submit the original of the alleged
contract with the Respondent 1 and the original of the letters that were enclosed to
its claim, along with its position on the response of the Respondent 1, Respondent 2
Club A, Country B / Player C, Country D, Club E, Country D and Club F, Country D
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and Respondent 3, the Claimant did not provide any further comments and only
submitted the same copies previously sent with the initial claim.
30.
In his duplica, the Respondent 1 repeated his position.
31.
Despite having been invited to do so, Respondent 2 did not present its final comments
on the replica of the club, although it was informed that, in absence of a reply, the
Dispute Resolution Chamber would take a decision on the basis of the information
and evidence at disposal.
32.
The Respondent 3 submitted its final comments in relation with this matter,
upholding its position.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, the Chamber took note that the present matter was submitted to FIFA on 22
August 2013. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the 2012 and
2014 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
Club of Country B, a Player of Country D and two Clubs of 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 (editions 2012 and 2014), and considering that
the present claim was lodged on 22 August 2013, the 2012 edition of the Regulations
on the Status and Transfer of Players (hereinafter: the 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
Club A, Country B / Player C, Country D, Club E, Country D and Club F, Country D
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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.
The members of the Chamber started by acknowledging that, according to the
Claimant, it had, on 14 June 2013, concluded an employment contract with the
Respondent 1 for a three-year period, after allegedly reaching an agreement with
Respondent 2 for the transfer of the Respondent 1. The DRC took note that the
Claimant argued that it did not receive further notice from both the Respondent 1
and the Respondent 2, and that Respondent 1 did not arrive on time to fulfil his
contractual obligations, while entering into an employment contract with
Respondent 3 during the same period as the employment contract signed with the
Claimant.
6.
Therefore, the Claimant requested to be awarded compensation for breach of
contract corresponding to the full amount of the employment contract concluded
with the Respondent 1, plus a six months indemnity and interests from the date of
the alleged breach. Furthermore, the Claimant requested a 6 months ban to be
imposed on the Respondent 1 and sporting sanctions to be imposed on the
Respondent 2 and the Respondent 3, plus costs and legal fees.
7.
The Dispute Resolution Chamber equally took due note of the fact that the
Respondent 1, on his part, had categorically denied the conclusion of an employment
contract with the Claimant. The chamber also acknowledged that the Respondent 1
argued that an agreement between the Claimant and the Respondent 2 regarding
his transfer was never reached. Moreover, the DRC observed that the Respondent 1
pointed out that a person by the name of Mr H appeared in all the communications
submitted by the Claimant, representing, at different moments, the Claimant,
Respondent 1 and Respondent 2.
8.
It was further observed by the Chamber that the Respondent 2 denied having had
any contact with the Claimant with regard to the transfer of the Respondent 1, while
also stating that the signature from the person acting as its representative on the
document dated 31 May 2013 is forged.
9.
The Dispute Resolution Chamber also gave due consideration to the arguments of the
Respondent 3. Firstly, its assessment that it never induced the player into breaching
an employment contract. Secondly, its conclusion that the claim should be rejected
because the player never signed a written employment contract with the Claimant
and the Claimant failed to prove the existence of the disputed contract.
10.
At this stage, the DRC considered it appropriate to remark that, as a general rule,
FIFA’s deciding bodies are not competent to decide upon matters of criminal law,
Club A, Country B / Player C, Country D, Club E, Country D and Club F, Country D
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such as the ones of alleged falsified signature or document, and that such affairs fall
into the jurisdiction of the competent national criminal authority.
11.
Subsequently, in view of the aforementioned dissent between the parties in respect
of the basic question as to whether or not an employment contract between the
Claimant and the Respondent 1 had been concluded, the members of the Chamber
firstly referred to art. 12 par. 3 of the Procedural Rules, according to which any party
claiming a right on the basis of an alleged fact shall carry the respective burden of
proof. The application of the said principle in the present matter led the members of
the Dispute Resolution Chamber to conclude that it was up to the Claimant to prove
the existence of the employment contract on the basis of which compensation for
breach of contract by the Respondent 1 is claimed.
12.
Having stated the above, the Dispute Resolution Chamber recalled that the
Respondent 1 maintained that he never signed a written employment contract with
the Claimant and maintained that his signature contained on the copy of the contract
remitted by the Claimant was forged. What is more, the Claimant was unable to
provide the relevant employment contract in its original form signed by the hand of
the parties despite having been asked to do so.
13.
On account of these considerations, the Chamber held that the fact the Claimant had
only submitted a copy of the disputed contract was insufficient to establish the
existence of the alleged contractual relationship.
14.
In respect of the foregoing, the members of the Chamber had to conclude that the
documents presented by the Claimant did not prove beyond doubt that the Claimant
and the Respondent 1 had validly entered into an employment contract.
15.
As a consequence, the Dispute Resolution Chamber decided that, since the Claimant
had not been able to prove beyond doubt that an employment contract had validly
been concluded between itself and the Respondent 1, there was no possibility for the
Chamber to enter into the question whether or not such alleged employment
contract had been breached.
16.
All the above led the Dispute Resolution Chamber to conclude that the claim of the
Claimant has to be rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is rejected.
Club A, Country B / Player C, Country D, Club E, Country D and Club F, Country D
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*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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
Club A, Country B / Player C, Country D, Club E, Country D and Club F, Country D
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