Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 March 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
John Bramhall (England), member
Theodore Giannikos (Greece), member
Zola Percival Majavu (South Africa), 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 against the club,
Club E, country F
as Respondent 2
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 31 August 2012, the player from country D, Player C (hereinafter: Respondent 1 or
player) and the club from country B, Club A (hereinafter: Claimant), concluded an
employment contract (hereinafter: contract) valid from the date of the signature
until 31 May 2015.
2.
Clause 3.1.d) of the contract established that “Si el futbolista juegue en la temporada
del fútbol 2014-2015 en 25 o más Premier League partidos de fútbol; el contrato de
futbolista se prolonga con una notificación a los partidos hasta la fecha 15.06.2015
con las condiciones siguientes por una temporada del fútbol. La fecha opcional del
final de contrato: Se va 31.05.2016.”.
In this respect, the Claimant provided a translation of the relevant clause into English
as follows: “In the season 2014 – 2015 if the player plays 25 or more first division
league games parties has right to extend players contract one football season by
notification until the date on 15.06.2015 for the following conditions The term of the
optional contract will be end on 31.05.2016”.
3.
According to the contract, the player was entitled to the following remuneration:
Season 2012-2013:
EUR 60,000 in September 2012;
EUR 1,040,000 divided in 10 monthly instalments.
Season 2013-2014:
EUR 60,000 in October 2013;
EUR 1,040,000 divided in 10 monthly instalments.
Season 2014-2015:
EUR 240,000 in October 2014;
EUR 960,000 divided in 10 monthly instalments.
4.
In case the contract would be extended for the season 2015-2016, the player would
be entitled to the following remuneration:
-
EUR 240,000 due in October 2015;
EUR 960,000 divided in 10 monthly instalments from August 2015 until May
2016.
5.
On 15 May 2015, the Claimant notified the player that the contract was extended
until 31 May 2016, in accordance with clause 3.1.d) of the contract.
6.
On 18 May 2015, the Claimant also notified the Football Association of country B
about the extension of the contractual period.
7.
On 25 May 2015, the Football Association of country B issued a declaration
confirming that it had registered the extension of the contract until 31 May 2016.
Club A, country B / Player C, country D / Club E, country F
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8.
On 3 July 2015, the player notified the Claimant that he considered the extension of
the contract invalid, since it was a unilateral extension. Moreover, the player pointed
out that the remuneration was the same for the season 2014-2015. In conclusion, the
player held that the contract was effectively terminated on 15 May 2015.
9.
On 6 July 2015, the Claimant replied to the player’s letter dated 3 July 2015, affirming
that the extension clause is valid since it is valid for both parties. Therefore, the
Claimant stated that the player was contractually bound to it until 31 May 2016 and
urged the player to join the team for training.
10. On the same date, 6 July 2015, the player replied insisting on the termination and
refusing to return to the Claimant.
11. On 10 July 2015, the player signed an employment contract with the club from
country F, Club E (hereinafter: Respondent 2), valid from the date of signature until
30 June 2016, by means of which the player was entitled to receive an annual
remuneration of USD 1,200,000. Moreover, the player and the Respondent 2 signed
another employment contract, dated 13 July 2015, valid from 1 July 2015 until 30
June 2016, which established a total remuneration of USD 600,000.
12. On 27 August 2015, the Players’ Status Committee authorized the provisional
registration of the player with the Respondent 2, after the rejection of the issuance
of the International Transfer Certificate (ITC) by the Football Association of country B
on two occasions.
13. On 30 September 2015, the Claimant lodged a claim before FIFA against the
Respondent 1 and the Respondent 2 for breach of contract, claiming the amount of
EUR 10,000,000 as compensation as well as that the Respondent 2 is to be considered
jointly and severally liable to pay the compensation claimed.
14. According to the Claimant, the contract was valid until 31 May 2015 with the
possibility to be extended by any of the parties, in case the Respondent 1 played 25
or more first division league matches during the season 2014-2015, by notifying the
other party until 15 June 2015. In particular, the Claimant pointed out that the
contract had already foreseen the financial terms in case of extension of the
contractual period.
15. In this respect, the Claimant held that, during the season 2014-2015, the
Respondent 1 played in 32 first division league matches and thus, both parties to the
contract had the right to extend the contractual period for one football season.
Consequently, the Claimant notified the Respondent 1 in writing of the exercise of
the extension option and, thus, the parties became contractually bound until 31 May
2016.
16. Finally, the Claimant stated that the Respondent 1 informed it that he had signed an
employment contract with the Respondent 2 and, in reaction, it immediately sent a
warning letter to the latter.
Club A, country B / Player C, country D / Club E, country F
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17. The Respondent 1 submitted his reply, rejecting the Claimant’s claim. First of all, the
Respondent 1 raised the issue that the Claimant addressed its claim to the Players’
Status Committee which would not be competent to deal with employment-related
disputes and thus, the claim should be rejected.
18. Moreover, the Respondent 1 held that the attempt of the Claimant to extend the
validity of the contract was based on an illegal and unenforceable clause of the
contract that established a unilateral option for contractual extension. Therefore, the
Respondent 1 stated that, even though he played in 32 “first division league (Premier
League as described in the contract) matches during the 2014/2015 season” and the
Claimant notified him of the extension, the contract expired after the end of the
2014-2015 season. According to the Respondent 1, he simply exercised his right to
refuse the unilateral extension and thus, he did not terminate the contract without
just cause.
19. In particular, the Respondent 1 made reference to the DRC and CAS jurisprudence
that a unilateral contract extension to a club’s benefit is invalid and inadmissible,
particularly where the extension is for the same financial terms as those of the
previous year.
20. In addition, the Respondent 1 indicated that the option to extend was only for the
Claimant as well as that the Claimant had the power to decide whether he would
participate in the country B’s first division league matches, which was the condition
to be fulfilled for a possible extension.
21. Furthermore, the Respondent 1 highlighted that, in any case, the claim is excessive
and unsubstantiated, considering the contractual terms.
22. Finally, the Respondent 1 requested the costs to be imposed on the Claimant as well
as legal fees in the amount of EUR 10,000.
23. The Respondent 2 submitted its position to the claim, alleging that the Claimant has
no claims against it since:
- The Respondent 2 hired the Respondent 1 in good faith and did not intervene
in the contractual relationship between the Claimant and the Respondent 1. In
this respect, the Respondent 2 submitted a statement of the Respondent 1
declaring he was free of contract.
- The unilateral extension of the contract is null and void in accordance with the
applicable legislation and jurisprudence.
24. In continuation, the Respondent 2 made reference to the “Portman Report” and
affirmed that a unilateral extension clause could only be accepted if 5 elements were
present:
- the maximal duration of the contract is not excessive;
Club A, country B / Player C, country D / Club E, country F
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- the option is exercised within an acceptable deadline before the expiration;
- the salary is defined in the original contract;
- one party is not at the mercy of the other party and a substantial increase of the
salary is the most important indication;
- the option is clearly established and emphasised so that the player is conscious
of it when singing the contract.
In this respect, the Respondent 2 stated that the clause was clearly null, since the
participation of the Respondent 1 in country B’s first division league matches
depends solely on the Claimant as well as there is no increase in the salary for the
new season.
25. In addition, the Respondent 2 held that the Claimant did not explain or justify the
amount of compensation requested and, for this reason, even in case it is considered
that the extension of the contract was valid and that the player breached the
contract, the claim should be rejected. Moreover, the Respondent 2 highlighted that
the Claimant did not submit any evidence of the damages allegedly suffered.
26. Finally, the Respondent 2 held that, if a compensation would be granted to the
Claimant, the maximum amount would be EUR 24,000, which allegedly corresponds
to one fourth of the monthly salary, in accordance with art. 337d 1 of the Swiss Code
of Obligations.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 30 September
2015. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2015; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 D and a club from country B as well as a club from country F.
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 on 30 September 2015, the 2015
edition of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
Club A, country B / Player C, country D / Club E, country F
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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
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 Chamber took note that the Claimant lodged a claim against the Respondent 1
and the Respondent 2 for breach of contract, claiming compensation in the amount
of USD 10,000,000 and that the Respondent 2 be held jointly and severally liable for
payment of the amount of compensation.
6.
In this context, first and foremost, the members of the DRC acknowledged that the
Claimant and the Respondent 1 were bound by an employment contract signed on 31
August 2012 and valid from that date until 31 May 2015.
7.
Moreover, regarding the duration of the contract, the DRC took note that clause
3.1.d) of the contract established that, in case the player played 25 first division
league matches or more in the season 2014-2015, the parties would have the right to
extend the contract for one season, i.e. until 31 May 2016, upon notification until 15
June 2015. In addition, the contract determined that, in case of extension of the
contractual period, for the season 2015-2016, the player would be entitled to receive
a total remuneration of USD 1,200,000 (cf. point I./3. above).
8.
In continuation, the DRC took note that the Claimant maintains that both parties had
the right to extend the contract for one season in accordance with clause 3.1.d) of
the contract, in case the player played 25 or more first division league matches. In
particular, the Claimant pointed out that the contract even foresees the relevant
remuneration for the season 2015-2016.
9.
In this respect, the Claimant affirms that the Respondent 1 participated in 32 first
division league matches and consequently both parties had the right to extend the
contractual period. In this regard, the Claimant states having notified the Respondent
1, on 15 May 2016, of the extension of the contractual period, as well as the Football
Association of country B and therefore, holds that the contract was validly extended
until 31 May 2016.
10. Moreover, according to the Claimant, considering that the contract was validly
extended until 31 May 2016, the Respondent 1 breached the contract by concluding
an employment contract with the Respondent 2, on 10 July 2015, while being
contractually bound to the Claimant. Finally, the Claimant held that the Respondent
2 must be considered jointly and severally liable for the payment of compensation for
breach of the contract.
Club A, country B / Player C, country D / Club E, country F
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11. Subsequently, the DRC took note that according to the Respondent 1 the contract
expired on 31 May 2015, as originally agreed. The Respondent 1 held that he
exercised his right to refuse the unilateral extension proposed by the Claimant and
that therefore, he did not terminate the contract without just cause. The Respondent
1 emphasised that the Claimant’s attempt to extend the contract was based on a
unilateral clause that cannot be considered valid.
12. In this respect, the Respondent 1 added that a unilateral extension clause is invalid in
accordance with the DRC and the CAS jurisprudence.
13. The DRC also took into account the arguments raised by the Respondent 2. In
particular, it took note that the Respondent 2 alleged that the unilateral extension is
null and void, since the participation of the player in the country B’s first division
league matches depended solely on the Claimant.
14. Having considered the diverging position of the parties, the members of the DRC
concluded that, first and foremost, and before entering into any other consideration,
they should examine the validity of the extension clause and determine whether the
employment contract signed between the Claimant and the Respondent 1 had been
validly extended until 31 May 2016.
15. At this point, the members of the DRC turned their attention to the contents of the
relevant extension clause, i.e. clause 3.1.d) of the contract, which establishes inter alia
in the uncontested English translation provided by the Claimant that the parties have
the right to extend the contract in case the player plays a certain number of matches
during the season 2014-2015, by notifying the other party until 15 June 2015.
16. The members of the Chamber underlined that it was undisputed by the parties that
the Respondent 1 fulfilled the condition required for an extension of the contract
under clause 3.1.d) of the contract.
17. Nevertheless, the Chamber deemed necessary to appreciate whether the fulfilment of
said condition, that is, the participation of a player in a certain number of matches
during a certain period of time, can be established in a mutual matter or, oppositely,
if it is a prerogative in the hands of a club.
18. Within this context, the members of the Chamber recalled that, in accordance with
the principle of pacta sunt servanda, a player is expected to duly fulfil his contractual
duties and, in particular, to diligently carry out and follow the instructions provided
by the club’s technical staff, including the decisions of the latter to line up a player in
an official match.
19. In this regard, the members of the Chamber concurred that, under normal conditions,
a player cannot decide on his own participation in official matches and that this is a
prerogative of the club’s technical staff.
Club A, country B / Player C, country D / Club E, country F
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20. Consequently, and in relation to the referred clause, the members of the Chamber
unanimously understood that only the Claimant had a capacity in the case at stake to
influence the fulfilment of the condition for the extension of the contract, and that
ultimately, the Respondent 1 was in a relationship of subordination to the Claimant’s
decisions over this issue.
21. In this regard, the Chamber took note that although in theory both parties could
unilaterally extend the contract by simply notifying the other party within the
deadline established in the contract, the right to unilaterally extend the contract
would only come into existence in case the imposed condition was met, i.e. that the
player plays in at least 25 first division league matches during the season 2014-2015,
which decision as explained above lies in the hands of the Claimant.
22. Considering all the above, the members of the Chamber agreed that clause 3.1.d) of
the contract is essentially unilateral in its own nature to the benefit of the Claimant
and that, accordingly, it should be deemed as invalid.
23. In addition, the DRC reverted to the financial terms of the contract and realised that
the remuneration foreseen for the season 2015-2016 in case of extension of the
contract was the exact same remuneration as for the season 2014-2015 and thus, did
not establish any raise or improvement in the financial conditions for the Respondent
1.
24. Moreover, the members of the Chamber highlighted the fact that the extension
clause established the deadline for notification of the extension until 15 June 2015,
therefore after the expiration of the contract agreed by the parties, i.e. 31 May 2015.
25. On account of the above, the DRC decided that the extension clause, i.e. clause 3.1.d)
of the contract, cannot be considered as being legally binding on the Respondent 1.
26. Having established the above and bearing in mind that the Respondent 1 has not
accepted to extend the contract with another season, the Chamber decided that the
contract signed between the Claimant and the Respondent 1 on 31 August 2012
ended with its ordinary expiry on 31 May 2015.
27. Consequently, the Respondent 1 was no longer contractually bound to the Claimant
as of 1 June 2015.
28. In this regard, the members of the Chamber observed that the Respondent 1 and the
Respondent 2 concluded an employment contract on 10 July 2015. The Chamber
established that said contract was thus concluded after the expiration of the
contractual relationship between the Claimant and the Respondent 1 only.
29. As a result, the members of the Chamber understood that neither the Respondent 1
nor the Respondent 2 should bear any liability towards the Claimant, and that
consequently, the claim of the Claimant has to be rejected in full.
Club A, country B / Player C, country D / Club E, country F
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30. In addition, as regards the legal fees requested by the Respondent 1, the Chamber
referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and
well-established jurisprudence, in accordance with which no procedural
compensation shall be awarded in proceedings in front of the Dispute Resolution
Chamber. Consequently, the Chamber decided to reject the Respondent 1’s request
relating to legal fees.
III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, Club 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:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Club A, country B / Player C, country D / Club E, country F
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