Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 March 2017,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Pavel Pivovarov (Russia), member
Roy Vermeer (Netherlands), member
Jon Newman (USA), 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 case
1.
On 7 June 2016, the Club of Country D, Club C (hereinafter: the Claimant), sent to
Club E an offer (hereinafter: the offer), co-signed by the Player of Country B, Player
A (hereinafter: the Respondent) which reads as follows:
“I am contacting you to express our interest to your player (…) born on 22/07/1993.
On this basis, we would like to take the [Claimant] on loan for one year with the
following conditions:
- 1 season starting in 1st July till 30th June 2017;
- €50.000 of loan fee;
- [The Respondent] will support the payment of the job accident insurance;
- The parties agree that [the Respondent] has the option right for a permanent
transfer of the [Claimant] by paying the net amount of €300.000. [the Respondent]
exercising the option right for the permanent transfer of the [Claimant], the
amount that must be paid for the loan of the [Claimant] must reduce in €50.000
- €135.000 salary
- €3500 subsidy for home”.
2.
On 13 July 2016, Club E, the Respondent and the Claimant signed an agreement
(hereinafter: the loan agreement) for the loan of the Claimant from Club E to the
Respondent from 1 July 2016 until 30 June 2017.
3.
In accordance with clause 5 of the loan agreement, “[the Respondent] will be the
sole and exclusively responsible for paying the [Claimant]’s salaries, and other
related charges, regarding the whole sport season of 2016/2107 (i.e. from July 2016
to June 2017), by means of an individual agreement to be signed with the
[Claimant]”.
4.
In addition, clause 6.2 of the loan agreement states that “[the Respondent] hereby
expressly declares that it approves the physical, technical and health condition of
the [Claimant]”.
5.
Furthermore, clause 7 of the loan agreement stipulates the following:
“1. This agreement is subject to the signing of an employment contract between the
[Claimant] and [the Respondent] for the season 2016/2017 at latest on or before 25
July 2016.
2. The effectiveness of this temporary assignment is subject to the effectiveness and
validity of the employment contract between the [Claimant] and [the Respondent],
getting this temporary assignment without effect, if the employment contract is
terminated with just cause”.
6.
On 22 July 2016, the Respondent remitted the Claimant a letter informing him that
it had decided to put an end to the trial tests and that no employment contract
would be signed.
Player A, Country B / Club C, Country D
2
7.
On 23 July 2016, the Respondent sent an e-mail to Club E informing the latter about
the end of the trial period.
8.
On 14 September 2016, the Claimant lodged a claim against the Respondent for
breach of contract, requesting the following:
- EUR 135,000, plus 5% interest p.a. as from the breach of contract, as
compensation ;
- EUR 7,500 as legal fees.
9.
In his claim, the Claimant alleges that the offer contains the essentialia negotii, such
as the economic terms as well as the signature of the Respondent and the Claimant,
and must therefore be considered as a valid employment contract. Nevertheless, the
Claimant explains that a formal employment contract was signed with the
Respondent after he arrived in Country D but the latter refused to provide him with
a copy. In support of his assertion, the Claimant submitted a copy of an article dated
14 July 2016 published on the Respondent’s website by means of which it
“announces that it has reached an agreement with [the Claimant] for valid contract
until June 2017”.
10.
In continuation, the Claimant outlines that neither the offer, nor the loan
agreement states that he would be put on trial. In this respect, the Claimant points
out that it would be incoherent to make him subject to a trial considering that by
means of clause 6.2 of the loan agreement, the Respondent had already approved
his physical, technical and health condition.
11.
In view of the above, the Claimant argues that on 23 July 2016, the Respondent
terminated the contract without just cause.
12.
Furthermore, the Claimant asserts that Club E, believing that he would stay in
Country D during the 2016-17 season, decided to cancel his contract for the referred
season in order to register another foreign player. As a consequence, the Claimant
explains that he was left without contract and thus income for the 2016-17 season.
13.
In its reply to the claim, the Respondent insists that the Claimant was on trial and
that no employment contract was ever signed. In support of its assertion, the
Respondent presented a declaration, dated 11 July 2016 and signed by its own
management, stating that the Claimant would be on trial for a period of 30 days.
According to the Respondent, said declaration was remitted to the Claimant in
order for him to enter the Territory of Country D. The Respondent further explains
that in accordance with art. 4 of its Statutes, “the company shall have two managers
(…) whose simultaneous signing is required for all acts that bind the company”.
Having said this, the Respondent points out that the loan agreement is only signed
by the President and one of the two managers, Manager F since the second
manager would only have signed it after the successful completion of the trial test.
Furthermore, the Respondent questions why the parties would have included in the
Player A, Country B / Club C, Country D
3
loan agreement a clause making the validity of the latter subject to the signature of
a valid employment contract, if the parties considered that the offer constituted a
valid and binding agreement. As a consequence, the Respondent alleges that the
loan agreement is not valid and binding.
14.
Regarding the announcement on the website, the Respondent alleges that it was a
mistake from the communication department due to the high number of players
that were transferred during said transfer window.
15.
Finally, the Respondent points out that the Claimant is still registered with Club E
and therefore did not suffer any damage.
16.
In his replica, the Claimant points out that the loan agreement does not indicate
that the signature of both managers is required. Equally, the Claimant outlines that
neither he nor Club E was informed of said requirement. Conversely, the Claimant
stresses that the loan agreement contains the mention “Signed for and on behalf
and acting with full authority of [the Respondent]”. Furthermore, the Claimant
alleges that should the manager have acted ultra vires, his personal liability towards
the Respondent could be triggered, but the agreement would remain valid towards
third parties that acted in good faith.
17.
In continuation, the Claimant highlights that the loan agreement does not specify
that he was arriving on a trial-basis. In this respect, the Claimant stresses that he is
not familiar with the declaration submitted by the Respondent in support of its
assertion, which in any case does not bind him.
18.
Furthermore, the Respondent argues that no professional sports club would make a
mistake such as the one allegedly made by the communication department of the
Respondent.
19.
Finally, the Claimant reiterates that his contract with Club E had been terminated
for the 2016-17 season and that therefore he would not receive any remuneration
from Club E for the referred season. In support of his assertion, the Claimant
submitted an “agreement of termination of a contract during a season” dated 10
July 2016.
20.
In its duplica, the Respondent reiterates its previous argumentation, insisting on the
Claimant’s failure to satisfactorily carry the burden of proof that an employment
contract had actually been signed.
21.
Having been invited to do so, the Claimant explained that he had been unemployed
since the end of the 2015-16 season. Nevertheless, according to the Transfer
Matching System, on 5 January 2017, the Claimant and the Club of Country B, Club
G, concluded an employment contract, valid as from 1 January 2017 until 31 May
Player A, Country B / Club C, Country D
4
2017 and pursuant to which he is entitled to a monthly remuneration of 3,000
(approx. EUR 900).
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
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 14
September 2016. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 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 2016), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns a dispute with an international dimension
between a Player of Country B and a Club of Country D in relation to an alleged
employment relationship between the two aforementioned parties, invoked by the
Claimant.
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
2016), and considering that the present claim was lodged on 14 September 2016,
the 2016 version of said regulations (hereinafter: 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
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 doing so, the members of the Chamber acknowledged that, according to the
Claimant, he had concluded with the Respondent an employment contract valid
from 1 July 2016 until 30 June 2017, in accordance with which the Respondent
allegedly had undertaken to pay him the total amount of EUR 135,000. Further, the
Chamber also took note of the Claimant’s allegations according to which the
Respondent had terminated the alleged contract without just cause on 23 July 2016.
Player A, Country B / Club C, Country D
5
6.
The DRC further took due note of the fact that the Respondent, on its part, had
categorically denied the conclusion of an employment contract with the Claimant.
7.
In view of this dissent between the parties in respect of the basic question as to
whether or not an employment contract between them 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 for to the Claimant to prove that the employment contract, on the basis
of which he claims compensation for breach of contract from the Respondent,
indeed existed.
8.
Having stated the above, the DRC first focused on the offer dated 7 June 2016
submitted by the Claimant in support of his assertion. In doing so, the Chamber
noted that according to the Claimant, such document contains the so-called
essetialia negotii and must therefore be considered as a valid employment contract.
9.
At this stage, the Chamber deemed it of utmost importance to point out that said offer
is inseparable from the loan agreement concluded on 13 July 2016 and must be
interpreted in the light of the latter. In particular, the members of the DRC recalled the
content of clause 7.1 of the loan agreement, which states that “[t]his agreement is
subject to the signing of an employment contract between the [Claimant] and [the
Respondent] for the season 2016/2017 at latest on or before 25 July 2016”.
10.
In this regard, the Chamber was eager to emphasise that unlike standard clauses
making the validity of a loan agreement subject to the signature of an employment
contract, this clause clearly and unambiguously establishes a deadline in the future, i.e.
before 25 July 2016, for the Claimant and the Respondent to sign an employment
contract. In the Chamber’s opinion, the insertion of such a specific clause in the loan
agreement demonstrates that when signing the loan agreement on 13 July 2016, the
Claimant and the Respondent did not consider themselves bound by any employment
contract. The Chamber felt comforted with its conclusion considering also clause 5 of
the loan agreement which further proves that it was the understanding of the parties
that they still needed to conclude the relevant employment contract.
11.
As a consequence, and after referring to the principle of venire contra factum proprium,
the Chamber concluded that in view of clauses 5 and 7.1 of the loan agreement, the
player cannot argue that he was already bound by an employment contract with the
Respondent and that therefore until 13 July 2016, the parties had not entered into a
valid contractual relationship.
12.
In continuation, the Chamber analysed whether in accordance with art. 7.1 of the loan
agreement, the parties had concluded a valid employment contract after 13 July 2016.
In this regard, the DRC observed that the Claimant asserts that a formal employment
Player A, Country B / Club C, Country D
6
contract was concluded with the Respondent after his arrival in Country D; however
without submitting a copy thereof.
13.
In this respect, the DRC outlined that the alleged article published in the Respondent’s
website on 14 July 2016, i.e. only one day after the signature of the loan agreement. In
this regard, the DRC deemed it likely that the members of the communication
department, who most probably lacked legal background and were not involved in the
contractual negotiations, mistakenly considered that by signing the loan agreement, an
employment relationship had been entered into between the Claimant and the
Respondent.
14.
In any case, the members of the Chamber held that in order for the Chamber to be
able to assume that the Claimant and the Respondent had indeed been bound
through a contractual relationship with the terms as described by the Claimant, it
had to be established by means of documentary evidence, which could prove at the
DRC’s satisfaction that the said parties had indeed entered into a respective labour
agreement, and, if so, under which terms. In general, the members of the Chamber
held that they could not assume that an employment contract had been concluded
by and between parties simply based on circumstances which, in general, may be
indicative however not certain regarding the signing of a contract. In addition, the
members of the Chamber agreed that the Dispute Resolution Chamber must be very
careful with accepting documents, other than the employment contract, as evidence
for the conclusion of a labour relationship.
15.
In respect of the foregoing, the members of the Chamber had to conclude that the
document presented by the Claimant did not prove to its comfortable satisfaction
that the Respondent and the Claimant had validly entered into an employment
contract after 13 July 2016.
16. As a consequence, the DRC decided that, since the Claimant had not been able to
prove beyond doubt that an employment contract had validly been concluded
between himself and the Respondent, there was no possibility for the Chamber to
enter into the question whether or not such alleged employment contract had been
breached.
17. All the above led the Dispute Resolution Chamber to conclude that the claim of the
Claimant has to be rejected.
Player A, Country B / Club C, Country D
7
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to art. 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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
8