Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 March 2013,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
Carlos Soto (Chile), member
Mario Gallavotti (Italy), member
Zola Majavu (South Africa), member
on the claim presented by the player,
Player C, from country B
as Claimant
against the club,
Club A, from country K
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 1 January 2011, Player C, from country B (hereinafter: the Claimant), and the Club
A, from country K (hereinafter: the Respondent), signed an employment contract
(hereinafter: the contract), valid as from the date of signature until 30 June 2011.
2.
According to the employment contract, the Respondent undertakes to provide the
Claimant, inter alia, with the following amounts:
- USD 40,000 as sign-on fee;
- USD 50,000 as remuneration, payable in instalments throughout the validity of the
contract;
- accommodation;
- a car;
- two economy-class tickets from country B-country K-country B, for the player and
his wife;
- bonuses at the end of the season.
3.
Article 3 of the contract establishes that “If the second party [the Claimant] leaves the
club before the end of the term of the contract he shall be responsible before the Club
to pay all the expenses incurred by the club whether paid in consideration for getting
the approval of joining the club or is incurred for any other purpose of, in addition to
the compensation for damage suffered by the club”.
4.
Moreover, art. 27 of the contract stipulates that “The second party [the Claimant]
undertakes to satisfy the required documents for (a professional) of lending an
International Card from his original club, and from the Federation which the second
party belongs to (the conditions of registration) and in case of failure to comply with
this first party [the club] is entitled to terminate the contract and refund all the
amounts paid to the player and to the club he belongs to by Club A in this regard”.
5.
Finally, art. 29 of the said contract establishes that the “Second party (player) shall be
subject to a probation period of (90) days from the date of his starting of training with
the club team and first party has the right to terminate this contract without showing
reasons during this period”.
6.
On 10 May 2011, the Claimant lodged a claim in front of FIFA against the Respondent
for breach of contract without just cause, requesting the payment of the total amount
of USD 224,000, plus interests of 5% p.a. as from the date of breach until the date of
effective payment, made up of:
- USD 40,000 as sign-on fee;
- USD 50,000 as remuneration for the entire duration of the contract;
- USD 24,000 as accommodation expenses for 6 months;
Player C, from country B / Club A, from country K
2/10
-
USD 8,000 corresponding to the cost of a car;
USD 12,000 corresponding to two air-tickets from country B-country K-country B;
bonuses;
USD 90,000 corresponding to the loss of value in future employment contracts;
legal fees.
7.
In addition, the Claimant requests that the Respondent should be banned from
registering any new players, either nationally or internationally, for two registration
periods.
8.
In his arguments, the Claimant explains that, although he has always complied with all
his contractual obligations, the Respondent never paid him any of the contractually
due amounts and orally terminated the contract without just cause, on 26 January
2011.
9.
By means of his letter dated 28 February 2011, the Claimant reminded the Respondent
of its arrears in the amount of USD 40,000 corresponding to his sign-on fee,
questioned it about the reasons for the early termination of the contract and
expressed his will to resume his activities with the Respondent. In this regard, the
Claimant provided a copy of the Respondent’s response, dated 10 March 2011,
according to which the contract was lawfully terminated by the Respondent on 26
January 2011, based on its art. 27 and 29.
10.
The Claimant deems the aforementioned articles to be abusive and, therefore,
inapplicable. While art. 29 of the contract is considered to be arbitrary, particularly
disadvantageous for the Claimant, as well as contrary to art. 15, 16 and 18 par. 2 and 4
of the Regulations on the Status and Transfer of Players; art. 27 of the contract
violates Annexe 3 of said Regulations, by establishing that the Respondent is entitled
to terminate the employment contract in case the Claimant fails to organize the
issuing of his International Transfer Certificate (ITC).
11.
In this regard, the Claimant deems that the Respondent terminated the contract
without just cause, based on its art. 27 and 29 of the contract, within the protected
period.
12.
Finally, the Claimant states that, in order to start an employment relationship with
Club A, he allegedly refused offers from other clubs and moved from country B to
country K; therefore, he shall not bear any negative consequences to his career arising
from the negligence of the Respondent to act according to the procedure for the
issuing of an ITC.
Player C, from country B / Club A, from country K
3/10
13.
In its response, the Respondent rejects the Claimant’s argumentation and insists on its
right to terminate the employment contract based on its art. 27 and 29, which are
considered by the Respondent as legal and binding, since the contract was signed by
the parties without reserves. In addition, since the contract was signed in country K
with a country K club, the laws of that country shall apply to the present matter.
14.
According to the Respondent, the Claimant arrived in country K on 22 January 2011
and departed on 26 January 2011, without previous notice and during his probation
period. In addition, the Claimant failed to comply with art. 27 of the contract, by not
providing the Respondent with his ITC. Immediately after the Claimant’s departure, on
26 January 2011, the Respondent terminated the contract. Therefore, the Claimant is
not entitled to receive any compensation from the Respondent.
15.
The Respondent denies having caused any type of damage to the Claimant’s career
and deems that he was responsible for the breach of contract, by leaving the country
and not participating in the trainings with the Respondent. Therefore, no sporting
sanctions shall be applied to the Respondent.
16.
In his replica, the Claimant maintains his previous position and explains that he arrived
in country K on 22 January 201 and only left the country after the Respondent
terminated the contract.
17.
In addition, the Claimant points out that the applicable law in the present case are the
FIFA Regulations and, subsidiary to it, the Swiss law. Besides, both parties to the
contract are members of FIFA and, thus, subject to its Regulations.
18.
In its final position, the Respondent maintains its previous argumentation and states
that the Claimant also breached art. 3 of the contract, by leaving country K on 26
January 2011, having arrived on 22 January 2011, as reported in a statement of the
Ministry of Interior, dated 11 May 2011, which states that the player arrived from the
country U on 22 January 2011 and left to country Q on 26 January 2011, provided by
the Respondent.
19.
Finally, the Claimant states having been registered with the following clubs:
- Club D, from country B, as from 26 January 2011 until 28 February 2011, for a
monthly salary of currency of country B 1,000;
- Club E, from country G, as from 1 March 2011 until 30 June 2011, for a monthly
salary of USD 8,000.
20.
The country K Football Association informed FIFA that the Respondent has never
requested the player’s ITC.
Player C, from country B / Club A, from country K
4/10
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the DRC 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 10 May 2011. Consequently, the 2008 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 hand (cf. art. 21 par. 2
and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the
Regulations (edition 2010), it is competent to decide on the present litigation, which
concerns an employment-related dispute with an international dimension, between a
country B player and a country K club.
3.
Furthermore, the DRC analysed which edition of the Regulations should be applicable
as to the substance of the matter. In this respect, the Chamber confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations (edition 2010) and considering
that the present matter was submitted to FIFA on 10 May 2011, the 2010 edition of
said Regulations is applicable to the present matter as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. In doing so, it started to
acknowledge the facts of the case as well as the documents contained in the file.
5.
In this respect, the DRC acknowledged that it was undisputed by the parties that the
Claimant and the Respondent had signed an employment contract, on 1 January 2011,
valid as from the date of signature until 30 June 2011, according to which the
Claimant was entitled, inter alia, to USD 40,000 as sign-on fee and USD 50,000 as
global salary for the entire validity of the contract.
6.
Furthermore, the DRC noted that it was also undisputed by the parties that, on 26
January 2011, the Respondent orally terminated the contract with the Claimant.
7.
The Chamber further noted that, on the one hand, the Claimant claims that, the
Respondent unilaterally and without just cause terminated the contract, based on its
art. 27 and 29. The Claimant deems the aforementioned articles to be arbitrary,
contrary to the FIFA Regulations and, therefore, inapplicable. The Claimant further
states that the Respondent never paid him any of the amounts stipulated in the
contract or requested the issuing of an ITC in his favour.
8.
In view of the aforementioned, the Claimant requests from the Respondent the
payment of compensation for breach of contract in the total amount of USD 224,000
Player C, from country B / Club A, from country K
5/10
and of all legal fees, plus interests of 5% p.a. as from the date of breach until the date
of effective payment. As the breach occurred within the protected period, the
Claimant equally claims the application of sporting sanctions against the Respondent.
9.
The DRC equally noted that the Respondent, on the other hand, states having lawfully
terminated the contract with the Claimant on 26 January 2011, based on its art. 27 and
29. In particular, the Respondent claims that, as per art. 29 of the contract, it was
entitled to terminate the contract “without showing reasons” during the probation
period of 90 days therein established. In addition, the Respondent deems that the
Claimant breached art. 27 of the contract, as he did not provide the Respondent with
his ITC. The Respondent further points out that the Claimant only arrived in country K
on 22 January 2011 and departed on 26 January 2011, never having rendered his
services to the Respondent. Therefore, the Claimant’s claim should be entirely rejected.
10.
In continuation, the members of the Chamber took note of the fact that, in his replica,
the Claimant maintains his previous allegations and confirms having arrived in country
K on 22 January 2011 and left the country on 26 January 2011, after the Respondent
terminated their contract without just cause.
11.
Subsequently, the Chamber observed that the Respondent additionally claims that the
Claimant breached art. 3 of the contract, by leaving the country without
authorization, as a consequence of which the contract was lawfully terminated. In
addition, the Respondent provided a copy of a statement of the country K Ministry of
Interior, confirming the arrival and departure dates of the Claimant in country K, i.e.
22 and 26 January 2011, respectively.
12.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant and the allegations of the
Respondent, was to determine whether the employment contract had been
unilaterally terminated with or without just cause by the Respondent, and which party
was responsible for the early termination of the contractual relationship in question.
The DRC also underlined that, subsequently, if it were found that the employment
contract was terminated by the Respondent without just cause, it would be necessary
to determine the consequences for the party that caused the unjust breach of the
relevant employment contract.
13.
In view of the above, the DRC firstly noted that the Respondent bases the termination
of the employment contract on its art. 27 and 29.
14.
In this respect, the DRC firstly recalled the wording of art. 27 of the aforementioned
contract, which stipulates that, “The second party [the Claimant] undertakes to satisfy
the required documents for (a professional) of lending an International Card from his
original club, and from the Federation which the second party belongs to (the
Player C, from country B / Club A, from country K
6/10
conditions of registration) and in case of failure to comply with this first party [the
club] is entitled to terminate the contract and refund all the amounts paid to the
player and to the club he belongs to by country K Club A in this regard”.
15.
Bearing in mind the content of the aforementioned article, the Chamber was eager to
refer the parties to Annex 3 of the FIFA Regulations, which establishes in detail the
procedure to be followed on a club-level, i.e. initiated by the engaging club and in
cooperation with the releasing club, which necessarily precedes the issuing of an
International Transfer Certificate, authorizing the transfer of a player between two
clubs belonging to different associations.
16.
In line with the stipulations of the aforementioned Annex 3 of the Regulations, the
DRC reminded the parties of its well-established jurisprudence, according to which 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 the 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.
17.
As a consequence, the Chamber concluded that art. 27 of the contract is not in line
with the FIFA Regulations or with its jurisprudence, and therefore it can neither be
considered as a valid article nor as just cause to unilaterally terminate the employment
contract with the Claimant.
18.
Having established the aforementioned, the Chamber focused on the analysis of art.
29 of the contract, equally used by the Respondent to justify the unilateral
termination of the contract. In this respect, the DRC reminded the parties of the
wording of the said article, which establishes the following: “Second party (player)
shall be subject to a probation period of (90) days from the date of his starting of
training with the club team and first party has the right to terminate this contract
without showing reasons during this period”.
19.
Subsequently, the Chamber deemed it appropriate to analyse the question of whether
such clause inserted in an employment contract could be considered valid. In that
regard, the Chamber deemed that the application of the above-mentioned rule was
arbitrary, since it lead to an unacceptable result based on non-objective criteria, which
entitled the Respondent to unilaterally terminate the contract during the first 90 days
of the contract. The DRC emphasised that the lack of objective criteria by the
application of the relevant rule lead to an unjustified disadvantage of the Claimant’s
financial rights.
20.
In this regard, the members of the DRC considered that the possibility granted only to
the Respondent to prematurely terminate the contract within its first 90 days, without
Player C, from country B / Club A, from country K
7/10
the need to indicate any reasons for it and only based on the fact that such period is
to be considered as a probation period, appeared to be of a highly subjective nature,
entailing that, de facto, it is left to the complete and utter discretion of the
Respondent whether or not it was willing to continue the contractual relationship.
21.
In view of the foregoing, the Chamber was of the opinion that art. 29 of the contract
invoked by the Respondent in order to put an end to the contract was clearly
potestative and that, consequently, the respective argumentation of the Respondent
could not be upheld by the DRC.
22.
In continuation, the Chamber noted that it is not disputed by the parties that the
Claimant arrived in country K on 22 January 2011 and left on 26 January 2011. This
piece of information is not only uncontested by the parties, but also corroborated by a
statement issued by the country K Ministry of Interior and provided by the
Respondent, which confirms the aforementioned arrival and departure dates of the
Claimant in and from country K.
23.
In this context, the Chamber observed that the employment contract signed between
the parties was valid as from 1 January until 30 June 2011.
24.
In view of the aforementioned information, the Chamber pointed out that the
Claimant arrived in country K 21 days after the entry into force of the contract signed
with the Respondent. In addition, the members of the Chamber noted that the
Claimant returned to country B only 4 days after his arrival, i.e. on 26 January 2011,
based on the alleged fact that the Respondent unilaterally terminated the contract
without just cause on that very date. Finally, the DRC equally noted that the Claimant
informed having been registered with the country B club, Club D, as from 26 January
2011 until his transfer to the country G club, Club E, on 1 March 2011.
25.
Furthermore, the Chamber observed that the Respondent claims to have orally
terminated the contract with the Claimant, on 26 January 2011, only after his
departure. In addition, the Chamber points out that the Respondent bases the
termination of the contract on art. 3, 27 and 29 of the contract. While articles 27 and
29 are considered by the DRC to be inapplicable and unable to justify a termination
with just cause, art. 3 only has the nature of a compensation clause, in case of breach
of contract by the Claimant. The Chamber, however, noted that no counterclaim for
compensation was lodged by the Respondent against the Claimant, and art. 3 is not
applicable to the present affair. Finally, the Chamber observed that, while the
Respondent alleges that the Claimant violated art. 3 of the contract by arriving in
country K only on 22 January 2011, it did not provide any proof that it has notified the
Claimant of his unauthorized absence during the first 21 days of the contract.
Player C, from country B / Club A, from country K
8/10
26.
At this point, the DRC deemed it appropriate to remind the parties of the basic
elements of a contract, namely an offer and an acceptance of said offer. Moreover,
the DRC recalled that the parties to an agreement must necessarily intend to enter a
legally binding relationship, which they shall either state explicitly or which can, in
certain cases, be inferred from the circumstances under which the agreement was
made.
27.
Bearing in mind the aforementioned principles as well as the particular circumstances
of the present case, the members of the Chamber observed that neither the
Respondent nor the Claimant were able to prove based on substantial evidence their
legitimate intention to create legal relations with their counterparties and execute the
contract signed between them on 1 January 2011.
28.
Therefore, the DRC concluded that the Claimant was not entitled to receive from the
Respondent any compensation for breach of contract.
29.
Consequently, the claim of the Claimant for the imposition of sporting sanctions on
the Respondent was also rejected by the DRC.
30.
Finally, the DRC held that the Claimant’s claim pertaining to legal costs is also rejected,
in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective
longstanding jurisprudence.
*****
Player C, from country B / Club A, from country K
9/10
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player C, 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 C, from country B / Club A, from country K
10/10