Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 29 March 2018,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Roy Verm eer (The Netherlands ), member
Alex andra Góm ez (Uruguay ), member
Wouter Lam brecht (Belgium ), member
Joel Talav era (Paraguay ), member
on the claim presented by the player,
Play er 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.
According to the player of Country B, Player A (hereinafter: the Claimant), on 4
January 2017, the club of Country D, Club C (hereinafter: the Respondent) sent
him an “offer letter” (hereinafter: the offer letter), by means of which it allegedly
offered him to conclude a contract with the following conditions:
- Duration: 4 January 2017 until 15 November 2017;
- 180,000 in the currency of Country D as monthly salary;
- 180,000 in the currency of Country D as sign-on fee;
- 5,000 in the currency of Country D for accommodation.
2.
Moreover, the offer included the following statement:
“This offer is for Player A […] This offer will become the basis for signing the
contract papers if you pass the medical test that will be done in the hospital of
your choice….”.
3.
In addition, the Claimant stated that, “on or about 12 January 2017”, he
concluded an employment contract with the Respondent, covering the period
from 4 January 2017 until 15 November 2017. According to the Claimant, on the
same date, a press conference was held to announce his arrival as the
Respondent’s new player.
4.
On 20 April 2017, the Claimant lodged a claim against the Respondent before
FIFA and requested the following amounts:
- 550,000 in the currency of Country D as outstanding salaries plus 5% interest
p.a. as from each due date. Said amount is broken down as follows:
180,000 in the currency of Country D as sign-on fee, “due on 4 January
2017”;
180,000 in the currency of Country D as outstanding salary for January
2017, “due on 5 January 2017”;
180,000 in the currency of Country D as outstanding salary for
February 2017, “due on 5 February 2017”;
10,000 in the currency of Country D as accommodation expenses for
January 2017 and February 2017.
1,620,000 in the currency of Country D as compensation for breach of
contract, corresponding to its residual value (March 2017 to November
2017) plus 5% interest p.a. as from the contract’s termination date.
5.
Furthermore, the Claimant requested the imposition of sporting sanctions against
the Respondent.
6.
In support of his claim, the Claimant explained that the Respondent never
provided him with a copy of the employment contract. However, he explained
that as from 12 January 2017 he started rendering his services to the Respondent.
Player A, Country B / Club C, Country D
Page 2 of 11
7.
In continuation, the Claimant explained that on 12 February 2017 the Respondent
informed him that he “could no longer join trainings of the [Respondent]”.
8.
Subsequently, the Claimant held that the Respondent did not request his ITC and
that he “has [not] been giving any chance to play in any matches” since 12
January 2017. According to the Claimant, the Respondent denied his “access to
competitions and, as such, violated one of his fundamental rights as a football
player”.
9.
Considering the above-mentioned circumstances, the Claimant stated that the
Respondent was no longer interested in his services.
10.
Equally, the Claimant stated that the Respondent failed to pay him his salaries
and accommodation allowances for January 2017 and February 2017 and the signon fee.
11.
Bearing in mind the abovementioned facts, the Claimant stated that the
Respondent clearly breached the employment contract and that, consequently, he
had just cause to unilaterally terminate it. Therefore, the Claimant explained that
he sent a letter to the Respondent on 13 February 2017 in which he granted a
deadline to the Respondent until 20 February 2017 “to settle this dispute
amicably”.
12.
Finally, the Claimant pointed out that in different replies to said letter the
Respondent offered to pay him two or four monthly salaries as settlement for the
termination of the contract. According to the Claimant, this demonstrates that
the Respondent admitted the existence of the contract.
13.
In its reply to the claim lodged by the Claimant, the Respondent requested the
complete rejection of the Claimant’s claim. In particular, the Respondent argued
that it has not signed an employment contract with the Claimant and that he was
not part of the Respondent’s team during the 2017 season.
14.
In continuation, the Respondent argued that the offer letter “is not an
employment contract in any way”. In this regard, the Respondent explained that
said letter “was issued to [the Claimant] inviting him to come and have his
professional skills and competency tested before entering in the process of
signing an employment contract with [the Respondent]”. However, the
Respondent explained that the Claimant “lacked the skill of a professional
football player” to qualify as a Respondent’s player. According to the Respondent,
the Claimant “has duly received the report on the assessment of his skill as
football professional”.
15.
Furthermore, the Respondent explained that all the employment contracts with
its players are constantly checked by the Football Association of Country D and
that it always hands copies of the contracts to all its players and to the Football
Player A, Country B / Club C, Country D
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Association of Country D. In this respect, the Respondent argued that if a signed
employment contract exists, the Claimant has to submit it.
16.
In his replica, the Claimant reiterated that the Respondent failed to provide him
with a copy of the employment contract.
17.
In reference to the contents of the offer letter, the Claimant considered that said
document contains all the “essentialia negotii” of a contract. Therefore, the
Claimant stated that said document “is a legally binding contract because it
satisfied all the elements of a contract…” and cannot be considered as “an
invitation for the [Claimant] to go to Country D to have his competency tested”,
as argued by the Respondent in its reply to the claim.
18.
Moreover, the Claimant pointed out that the only condition that the offer letter
had was to pass the medical tests. According to the Claimant, he met the
requirement and the Respondent did not contest it.
19.
Subsequently, the Claimant explained that even if there was no written contract
whatsoever, there was a de facto employment relationship between the parties.
In this respect, the Claimant pointed out that he “went to Country D and
performed his obligations as an employee for nearly a month before being
dismissed by the [Respondent]”.
20.
Finally, the Claimant stated that the Respondent failed to comply with its
obligation of registering him with the Football Association of Country D.
21.
The Respondent submitted its duplica, reiterating its arguments and confirming
its positions concerning the Claimant’s claim.
22.
In addition, the Respondent argued that the Claimant acknowledged that there
was no employment contract and that he was trying to claim that the offer letter
was a contract. According to the Respondent, this “is not in good faith”.
23.
Regarding the answers to the letter sent by the Claimant on 13 February 2017 (cf.
point 12 above), the Respondent explained that “it was only part of
correspondence between the [Respondent] and [the Claimant] over other topics”.
24.
Furthermore, the Respondent explained that the Claimant practiced with the
Respondent less than 30 days and, therefore, is not entitled to receive any
payment according to the law of Country D.
25.
In relation to the press conference (cf. 3 point above), the Respondent explained
that it uses such conferences to “generally welcome all football players to come
practice” with the Respondent.
Player A, Country B / Club C, Country D
Page 4 of 11
26.
Finally, and upon FIFA’s request, the Claimant informed that he did not conclude
any employment contract with another club after the termination of the contract.
II.
Cons iderations of the Dis pute Res olution Cham ber
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, it took note that the present matter was submitted to FIFA on 20
April 2017. Consequently, the 2017 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
of the 2017 and 2018 editions 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 2018), 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
(editions 2016 and 2018), and considering that the present matter was submitted
to FIFA on 20 April 2017, the 2016 edition of the aforementioned regulations
(hereinafter: the 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 members of the Chamber entered into the substance of the
matter, while emphasizing that, although having acknowledged all the abovementioned facts, 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.
Firstly, the DRC acknowledged that according to the Claimant, on 4 January 2017,
the Respondent sent him an “offer letter” by means of which it allegedly offered
him to conclude a contract with the following conditions:
- Duration: 4 January 2017 until 15 November 2017;
- 180,000 in the currency of Country D as monthly salary;
- 180,000 in the currency of Country D as sign-on fee;
- 5,000 in the currency of Country D for accommodation.
Player A, Country B / Club C, Country D
Page 5 of 11
6.
Along with the above, the Chamber took note that the Claimant held that “on or
about 12 January 2017”, he concluded an employment contract the Respondent,
covering the period from 4 January 2017 until 15 November 2017.
7.
Subsequently, the DRC noticed that the Claimant sent a correspondence labelled
“termination letter” to the Respondent on 13 February 2017.
8.
The members of the Chamber considered important to note, however, that, in
said letter the Claimant also gave the Respondent a prior warning as he stated
that he will resume the contract with the Respondent if the latter “confirm [its]
intention to honour the contract” and to register him for the 2017 season. The
DRC also observed that in said letter the Claimant granted a deadline to the
Respondent until 20 February 2017 “to settle this dispute amicably”.
9.
Moreover, the DRC took note that, on 20 April 2017, the Claimant lodged a claim
against the Respondent before FIFA and requested 550,000 in the currency of
Country D as outstanding remuneration and 1,620,000 in the currency of Country
D as compensation for breach of contract.
10.
Further, the Chamber took note that the Claimant explained that as from 12
January 2017 he started rendering his services to the Respondent. However, the
DRC noticed that the Claimant argued that the Respondent never provided him
with a copy of the employment contract.
11.
Notwithstanding with the above, the members of the Chamber observed that the
Claimant considered that the offer letter contains all the “essentialia negotii” of a
contract and therefore, can be considered “a legally binding contract because it
satisfied all the elements of a contract…”.
12.
Moreover, the DRC acknowledged that the Claimant argued that the Respondent
was no longer interested in his serviced as it did not request his ITC and also failed
to pay him his salaries and accommodation allowances for January 2017 and
February 2017 as well as the sign-on fee.
13.
In continuation, the Dispute Resolution Chamber took note that the Respondent
on its part requested the complete rejection of the Claimant’s claim. In particular,
the Chamber observed that the Respondent argued that it has not signed an
employment contract with the Claimant and that the offer letter cannot be
considered an employment contract. According to the Respondent, the Claimant
was not part of the team during the 2017 season.
14.
In this regard, and after having carefully examined the parties’ positions, the
Chamber wished to highlight that in order for an employment contract to be
considered as valid and binding, apart from the signature of both the employer
and the employee, it should contain the essentialia negotii of an employment
Player A, Country B / Club C, Country D
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contract, such as the parties to the contract, their role, the duration of the
employment relationship and the remuneration.
15.
This being established, and after a careful study of the offer letter presented by
the Claimant, the Chamber concluded that all such essential elements are included
in the pertinent document, in particular, the fact that the said document
establishes that the Claimant is entitled to receive remuneration, including a
monthly salary, in exchange for his services to the Respondent as a player.
16.
Consequently, the members of the DRC decided that the offer letter (hereinafter:
the contract) contains all essentialia negotii of an employment contract and
therefore the Claimant and the Respondent were in a valid and legally binding
employment relationship as from 4 January 2017.
17.
Furthermore, the DRC considered relevant to recall its jurisprudence in accordance
with which the validity of an employment contract cannot be made conditional
upon the execution of (administrative) formalities, such as, but not limited to, the
registration procedure in connection with the international transfer of a player,
which are of the sole responsibility of a club and on which a player has no
influence. The DRC also pointed out that 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. As regards the case at stake, the DRC stressed that,
according to the information submitted to the file, no ITC was requested by the
Respondent.
18.
Subsequently, the Chamber noted that the Respondent did not present any
evidence that the sign-on fee as well as the Claimant’s salary and accommodation
allowance for January 2017 were paid. In this respect, the members of the
Chamber also stressed that the Claimant was entitled to a sign on fee of 180,000
in the currency of Country D, to a monthly salary of 180,000 in the currency of
Country D and to receive a monthly amount of 5,000 in the currency of Country D
for accommodation.
19.
On account of the aforementioned considerations, and in accordance with the
general legal principle of pacta sunt servanda, the DRC decided that the
Respondent is liable to pay to the Claimant outstanding remuneration in the total
amount of 365,000 in the currency of Country D.
20.
In addition, and with regard to the Claimant's request for interest, the members
of the Chamber decided to award the Claimant interest on the above-mentioned
amount as follows:
a) 5% p.a. over the amount of 180,000 in the currency of Country D as from 5
January 2017 until the date of effective payment;
Player A, Country B / Club C, Country D
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b) 5% p.a. over the amount of 185,000 in the currency of Country D as from 1
February 2017 until the date of effective payment.
21.
Having established the above and, considering the conflicting position of the
parties, the Chamber went on to analyse if the contract had been terminated by
the Respondent with or without just cause.
22.
In this regard, the Chamber established that the Respondent obviously had no
longer been interested in the Claimant’s services by sustaining that no valid
employment contract existed between the parties, by not requesting the relevant
ITC although this being the responsibility of the Respondent and by failing to
remit the Claimant’s salaries. Such conduct constitutes, in the Chamber’s view, a
clear breach of contract. Accordingly, the Chamber concurred that the Claimant
had just cause to unilaterally terminate the employment contract on 20 February
2017 and that, consequently, the Claimant is entitled to receive from the
Respondent an amount of money as compensation.
23.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the members of the Chamber firstly recapitulated that, in accordance with art. 17
par. 1 of the Regulations, the amount of compensation shall be calculated, in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the
specificity of sport and further objective criteria, including, in particular, the
remuneration and other benefits due to the Claimant under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls
within the protected period.
24.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by
means of which the parties had beforehand agreed upon a compensation payable
by the contractual parties in the event of breach of contract. In this regard, the
Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
25.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations.
26.
Having recalled the aforementioned, and in order to establish the amount of
compensation to be paid by the Respondent, the Chamber took into account the
remuneration due to the Claimant in accordance with the employment contract as
well as the time remaining on the same contract, along with the professional
situation of the Claimant after the early termination occurred. In this respect, the
Chamber observed that at the time of the termination of the employment
Player A, Country B / Club C, Country D
Page 8 of 11
contract, the remaining value of it corresponds to 1,805,000 in the currency of
Country D consisting of the salaries from February 2017 to November 2017
(1,800,000 in the currency of Country D), as well as 5,000 in the currency of
Country D corresponding to the Claimant’s accommodation allowance for
February 2017. Consequently, the DRC concluded that the amount of 1,805,000 in
the currency of Country D serves as the basis for the final determination of the
amount of compensation for breach of contract in the case at hand.
27.
Subsequently, the members of the Chamber verified as to whether the Claimant
had signed an employment contract with another club during the relevant period
of time, by means of which he would have been enabled to reduce his loss of
income. According to the constant practice of the DRC, such remuneration under
a new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the player’s
general obligation to mitigate his damages.
28.
In this regard, the Chamber noted that, according to the Claimant, he did not
enter into any professional football relationship with a new club after the
termination of the contract with the Respondent.
29.
The Chamber therefore concluded that the Claimant is entitled to receive from
the Respondent compensation for breach of contract in the amount of 1,805,000
in the currency of Country D which is considered by the members as a fair and
justified amount.
30.
In addition, taking into account the constant practice of the DRC in this regard,
the Chamber decided that the Respondent must pay to the Claimant interest of
5% p.a. on the amount of compensation as of the date on which the claim was
lodged, i.e. 20 April 2017, until the date of effective payment.
31.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
365,000 in the currency of Country D.
3.
Within the sam e deadline, the Respondent has to pay to the Claimant interest
as follows:
Player A, Country B / Club C, Country D
Page 9 of 11
-
5% p.a. over the amount of 180,000 in the currency of Country D as from
5 January 2017 until the date of effective payment;
-
5% p.a. over the amount of 185,000 in the currency of Country D as from
1 February 2017 until the date of effective payment.
4.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, compensation for breach of contract in the amount
of 1,805,000 in the currency of Country D plus 5% interest p.a. on said amount as
from 20 April 2017 until the date of effective payment.
5.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2., 3. and 4. are not paid by the Respondent within the stated
time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
6.
Any further claim lodged by the Claimant is rejected.
7.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the m otiv ated decis ion (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:
Player A, Country B / Club C, Country D
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Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
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