Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 February 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Johan van Gaalen (South Africa), member
Mohamed Al-Saikhan (Saudi Arabia), member
Mario Gallavotti (Italy), member
Eirik Monsen (Norway), member
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 decision
1.
On 17 September 2012, the player from country B, Player A (hereinafter: the
Claimant), and the club from country D, Club C (hereinafter: the Respondent),
concluded an employment contract (hereinafter: the contract) valid as of the
date of signature until 30 June 2013, with an option to extend “under the Act
of 24 February 1978”.
2.
Pursuant to art. 6 par. 1 of the contract, the Claimant was to receive a gross
monthly salary of EUR 3,500 payable over ten months.
3.
As per art. 6 par. 3.1 of the contract, the Claimant was entitled to a sign-on fee
in the amount of EUR 42,500 payable in ten instalments of EUR 4,250 each, due
on the 10th day as from October 2012 until July 2013.
4.
Art. 6 par. 4 of the contract stated that the Respondent was to provide a
furnished two bedroom apartment, at the Claimant’s convenience.
5.
By means of correspondence dated 4 April 2013, the Football Association of
country D confirmed the extension of the contract between the Claimant and
the Respondent until 30 June 2014, acknowledging receipt of “documents” sent
by the Respondent.
6.
On 30 June 2013, the parties signed a termination agreement.
7.
According to art. 1 of the termination agreement, the parties decided to
terminate with effect as of 30 June 2013 and by mutual consent, the contract
concluded on 17 September 2012.
8.
Art. 3, last sentence, of the termination agreement provided that the parties
should not take any legal actions whatsoever towards one another.
9.
Art. 4 of the termination agreement foresaw that such agreement aimed at
clearing any disputes towards one another, including any subsequent disputes
relating to the employment contract “and/or the group insurance”.
10.
On 7 August 2013, the Football Association of country D acknowledged, by
means of a correspondence addressed to the Respondent and copied to the
Claimant, the amicable termination of the contract, referring to art. 941.2 of the
Federal Regulations.
11.
On 8 October 2013, the Claimant’s representative put the Respondent in default
of the non-payment of his last monthly salary due on 30 June 2013, as well as of
Player A, country B / Club C, country D
2
the last instalment of EUR 4,250 payable on 10 July 2013, and the deduction by
the Respondent of EUR 400 for the rent expenses, thus granting it a deadline of
five days in order to remedy the default.
12.
On 9 October 2013, the Respondent replied, referring to a “gentlemen
agreement” concluded with the Claimant in May 2013. The Respondent
explained that, on several occasions, the Claimant left the Respondent to go
back to country B without its permission and thus missed trainings. The
Respondent further pointed to the Claimant leaving before the end of the
season and not resuming at the beginning of the next season. In this context,
and since the Claimant was still under contract, the Respondent stated that the
parties found an agreement in order to “help him to find a club without
transfer fee”, hence the signing of the aforementioned agreement, which
cleared out any disputes towards one another.
13.
On 10 October 2013, the Claimant’s representative requested the Respondent to
be provided with a copy of said agreement and to provide evidence as to the
Claimant’s unprofessional behaviour, which was denied by the Claimant. The
Claimant’s representative ultimately asked the Respondent whether the
Claimant was not entitled to the claimed outstanding amounts as a result of his
unprofessional behaviour or as a result of the agreement.
14.
On 30 June 2015, the Claimant lodged a complaint before FIFA against the
Respondent, requesting the payment of the outstanding amount of EUR 10,950.
15.
According to the Claimant, he should have received a total fixed-remuneration
of EUR 72,925.50 corresponding to EUR 30,425.50 as per art. 6 par. 1 of the
contract (i.e. EUR 35,000 as total gross salary, minus EUR 4,574.50 corresponding
to the Social Security deduction) and EUR 42,500 as per art. 6 par. 3.1 of the
contract.
16.
The Claimant further referred to art. 6 par. 4 of the contract and held that the
Respondent should have covered his monthly rent in the amount of EUR 1,600.
17.
Yet, the Claimant deemed that the Respondent did not pay the total amount of
EUR 10,950 corresponding to:
EUR 3,500 as salary for June 2013, due on 30 June 2013;
EUR 4,250 as instalment due on 10 July 2013;
EUR 3,200 as “deduction of rent difference” by the Respondent from the
Claimant’s monthly salary from October 2012 through May 2013.
18.
In its statement of defence, the Respondent rejected the Claimant’s claim, based
on the statute of limitations foreseen in art. 25 par. 5 of the FIFA Regulations on
Player A, country B / Club C, country D
3
the Status and Transfer of Players (hereinafter: FIFA Regulations). In particular,
the Respondent pointed to the Claimant’s alleged outstanding salary of EUR
3,500 as well as the alleged deduction by the Respondent of EUR 400 from
October 2012 to May 2013, and maintained that said amounts are prescribed
since the Claimant’s petition was submitted to FIFA on 1 July 2015.
19.
As to any other alleged outstanding amounts, and should the DRC consider the
Claimant’s petition not time-barred, the Respondent referred to art. 4 of the
termination agreement, according to which any disputes between the parties
were cleared out by signing the relevant termination agreement. In this regard,
the Respondent deplored the Claimant’s bad faith who did not provide FIFA
with the termination agreement when lodging the claim.
20.
Thus, the Respondent deemed that, by signing the termination agreement, the
Claimant was entitled to sign with a new club without the Respondent
requesting any compensation based on such transfer, in exchange of the
Respondent being exempted from any remuneration towards the Claimant,
who cannot raise any dispute based on the contract.
21.
The Respondent further explained that the signing of the termination
agreement was prompted by the Claimant’s absences in May and June 2013
without the Respondent’s authorisation and any valid reasons, as well as the
Claimant’s alleged will to leave the Respondent, as referred to in its e-mail sent
to the Claimant’s representative on 9 October 2013.
22.
The Respondent also referred to art. 3 of the termination agreement and
underlined that, considering that the parties mutually waived their right to
institute legal proceedings or actions, the Claimant’s claim before FIFA should
be rejected.
23.
In his replica, the Claimant denied having left the Respondent without being
granted permission and having expressed a will to terminate the contractual
relationship with the Respondent. In particular, the Claimant asserted that there
were no further official matches with the Respondent as from 5 May 2013 and,
thus, the Respondent’s allegation – according to which the Claimant missed
several matches in May and June 2013 – is not valid. In this respect, the Claimant
provided an extract from Internet indicating that the last match of the season
2012-2013 was held on 5 May 2013 and that the Claimant participated as a
substitute.
24.
In addition, the Claimant alleged that, on 9 May 2013, he returned the car that
he was offered during the contractual term. In this regard, the Claimant
provided a written attestation of the administrative director of the Respondent,
Player A, country B / Club C, country D
4
acknowledging the aforementioned. In this context, the Claimant deemed that
the Respondent was aware of his absence as from 10 May 2013.
25.
Moreover, the Claimant explained that, as a member of country B’s National
Team A at the time, he was called up and participated in the training sessions
and preparation for the qualifying match for the FIFA’s World Cup 2014
between country B and country E, which took place on 8 June 2013 in city F. In
this respect, the Claimant provided a correspondence dated 23 October 2015
from the Football Federation of country B, which confirmed the
aforementioned, and added that the Claimant participated in the training
sessions of the National Team from 22 May 2013 through 7 June 2013.
26.
As to the Respondent’s allegation relating to prescription, the Claimant
acknowledged that its claim bore the date of 1 July 2015 and time 00:25, and
explained that it was yet sent to FIFA on 30 June 2015 at 23:25, Swiss time.
Therefore, his claim is not time-barred.
27.
Regarding the termination agreement, the Claimant alleged that, by signing
such document, the parties did not intend to terminate the contract but the
annex to the contract, which, according to the Claimant, the Respondent
intentionally and deliberately concealed from FIFA. In this respect, the Claimant
provided a copy of said annex to the contract, dated 17 September 2012,
bearing the signature of both parties.
28.
According to the annex to the contract, the extension of the contract for the
season 2013-2014 should be notified to the Claimant, by the Respondent, via
registered letter with acknowledgement of receipt by no later than 31 March
2013. The annex also stated that the Claimant undertook to accept the
automatic exercise of the option to extend. Finally, it stated that such annex
formed an integral part of the contract and that all of the other contractual
provisions will apply, unless the parties expressly and in writing decided
otherwise.
29.
In this regard, the Claimant emphasised that although the Respondent argued
that it had agreed to the extension of the contract until 30 June 2014, it solely
provided the confirmation by the Football Association of country D which,
according to the Claimant, clearly referred to an “option agreement”, without
providing a copy of such “option agreement”. The Claimant further asserted
that, in fact, the parties’ intention was not to terminate the contract, which was
actually expiring on the same date, but the “option agreement” that the parties
concluded on 17 September 2012 and that the Respondent put into force in
April 2013.
Player A, country B / Club C, country D
5
30.
In addition, the Claimant pointed out that the termination agreement was not
concluded on 30 June 2013, but on the same date as the contract and the annex
to the contract, i.e. 17 September 2012, insofar as the Respondent apparently
wanted to have the full option of reserving the Claimant’s rights in order to be
in a position to negotiate a potential transfer of the Claimant to another club,
by renewing and extending the contract until 30 June 2014; and also the option
to “cancel” the annex to the contract, including the option to extend the
contractual relationship, by enforcing the termination agreement “with effect
from 30 June 2013”.
31.
In view of the aforementioned, the Claimant maintained that the termination
agreement did not refer to the contract but the “option agreement” and the
Claimant therefore upheld his claim in the principal and added a request for
“compound interest”.
32.
In its final comments, the Respondent reiterated its entire position, in particular
as per the exercise of the option to extend the contract, adding that the parties
agreed upon such extension in the course of March 2013. In this respect, the
Respondent referred to a correspondence dated 29 March 2013, addressed to
the Claimant, by means of which the Respondent notified the Claimant of the
exercise of the option to extend the contract until 30 June 2014, as per the
signed agreement and the annex to the contract.
33.
Moreover, the Respondent provided a correspondence dated 30 March 2013,
informing the Football Association of country D of the exercise of the option to
extend the contract until 30 June 2014 and of the prior notification to the
Claimant by registered mail.
34.
The Respondent also submitted an extract of system G dated 4 April 2013 – the
equivalent of the Transfer Matching System (TMS) on the national level –
indicating that the expiration date of the contract between the Claimant and
the Respondent is 30 June 2014.
35.
In addition, the Respondent insisted on the fact that the termination agreement
was concluded as a result of the Claimant’s will to leave the Respondent as from
10 May 2013. In this regard, the Respondent submitted the following exchange
of e-mails with the Claimant’s former representative:
E-mail dated 10 May 2013 from the Claimant’s former representative,
mainly confirming that the Claimant will not return to the Respondent ,
that he paid the rent for May 2013 and returned the car to the
Respondent;
Player A, country B / Club C, country D
6
E-mail dated 31 May 2013 from the Respondent that it needed an official
letter of invitation from the Football Federation of country B as to its
selection in the country B’s National team for June 2013;
E-mail dated 2 June 2013 from the Claimant’s former representative,
asserting that the previous will be done and asking whether to pay the
rent for June 2013;
E-mail dated 3 June 2013 from the Respondent, indicating that the rent
for June 2013 was in principle included in the rent agreement, unless the
Claimant negotiated otherwise.
36.
Furthermore, the Respondent underlined that the termination agreement was
concluded in order to put an end to the contract, together with its annex, since
the latter was an integral part of the contract. The Respondent also asserted
that the contract and its annex – containing the option to extend the contract
until 30 June 2014 – were the only documents binding the parties, and both
were terminated by mutual consent on 30 June 2013.
37.
Therefore, the Respondent deemed that the Claimant’s claim shall be entirely
rejected.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the
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 30 June
2015. Consequently, the 2015 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
the Procedural Rules) is applicable to the matter at stake (cf. art. 21 par. 1 and 2
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 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 player from country B and a club from
country D.
3.
Furthermore, the Chamber analysed which 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 2015), and considering that the present claim was lodged in front of
Player A, country B / Club C, country D
7
FIFA on 30 June 2015, the 2015 edition of said Regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the Chamber entered the substance of the present matter. In doing
so, it started by acknowledging the abovementioned facts of the matter 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.
5.
In this respect, the members of the Chamber acknowledged that the parties had
signed an employment contract on 17 September 2012 for the season 20122013, which was extended until 30 June 2014. The Chamber also observed that
the said employment contract was terminated by mutual consent on 30 June
2013.
6.
In continuation, the DRC observed that the Claimant alleged that the Respondent
had failed to pay him outstanding remuneration in the amount of EUR 10,950
corresponding to the salary for June 2013, the instalment of EUR 4,250 due on 10
July 2013 and EUR 3,200 as “deduction of rent difference” from October 2012 to
May 2013. Equally, the Dispute Resolution Chamber took note of the reply of the
Respondent, which first of all asserted that the claim was time-barred since it was
lodged on 1 July 2015 and it related to remuneration allegedly due for the
season 2012-2013; and, in case this was not decided as such by the DRC, that any
alleged outstanding amounts were settled by signing the aforementioned
termination agreement.
7.
In this respect, the Chamber highlighted that the claim, albeit bearing the date 1
July 2015, was received on 30 June 2015 by the FIFA administration.
Consequently, only the part of the claim relating to the rent deduction of EUR
400 from October 2012 to May 2013 must be considered barred by the statute of
limitations in accordance with art. 25 par. 5 of the Regulations. Accordingly, the
Chamber stressed that it would only focus on the remuneration that had fallen
due after this date, i.e. the salary for June 2013 which was fell due on 1 July 2013
and the instalment of EUR 4,250 which was due on 10 July 2013.
8.
Additionally, the Chamber noted that the Respondent, in its statement of
defence, denied owing any amount to the Claimant. In particular, the
Respondent referred to the termination agreement and, most specifically, to its
art. 4 which stated that any disputes between the parties were cleared out.
Player A, country B / Club C, country D
8
9.
In view of the argumentation put forward by the Respondent, the DRC deemed
that, in order to be able to establish whether the Respondent had any
outstanding salaries to be paid to the Claimant, it was crucial to closely examine
the termination agreement.
10.
In this regard, the DRC recalled the content of art. 4 of the termination
agreement, which aimed at clearing any disputes towards one another, including
any subsequent disputes relating to the employment contract “and/or the group
insurance”. The Chamber also highlighted that, according to art. 3 of the
termination agreement, the parties should not take any legal actions whatsoever
towards one another.
11.
Furthermore, the Chamber noted that the Claimant did not reject the existence
of the termination agreement but indicated that such agreement was signed on
17 September 2012 and aimed at terminating only the annex to the contract and
not the full contractual relationship.
12.
To this end, the DRC recalled the basic principle of burden of proof, as
stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party
claiming a right on the basis of an alleged fact shall carry the respective burden
of proof. Accordingly, the Dispute Resolution Chamber noted that the Claimant,
which carried the said burden of proof, failed to provide conclusive evidence
substantiating that the relevant termination agreement only pointed to the
annex to the contract.
13.
On account of the aforementioned considerations, the DRC found that it had no
other alternative but to conclude that, by signing the termination agreement,
both parties agreed upon the content of such agreement and its consequences,
i.e. the termination of the contractual relationship between the parties and the
clearance of all debts and disputes arising out of the employment contract.
14.
Consequently, the members of the Chamber decided to reject the Claimant’s
claim, insofar as it is admissible.
Player A, country B / Club C, country D
9
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant is rejected insofar as it is admissible.
*****
Note relating to the motivated decision (legal remedy):
According to article 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:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
10