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
Wouter Lam brecht (Belgium ), 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 cas e
1.
On 30 January 2013, the Player of Country B, Player A (hereinafter: the player or
the Claimant), and the Club of Country D, Club C (hereinafter: Club C or the
Respondent), signed a first employment contract (hereinafter: the first contract)
valid as from the date of signature until 30 June 2016.
2.
On 29 August 2014, Club C and the Club of Country E, Club F (hereinafter: Club
F) agreed upon the definitive transfer of the player from the former to the
latter. The relevant transfer agreement stipulated that no transfer fee would be
paid for the definitive transfer of the player. Moreover, the Claimant was also a
party to the transfer agreement.
3.
Also on 29 August 2014, the Claimant and the Respondent signed a document
in which it is stated, inter alia, that their intention is to interrupt the
employment relationship in view of the definitive transfer of the player to Club
F and that in view of the Claimant’s willingness to be transferred to Club F, Club
C undertook the obligation to pay the player EUR 297,660. Moreover, this
document stipulated that the employment relationship between the parties
would cease to exist as of 30 August 2014.
4.
On 31 August 2014, the Claimant and Club F signed an employment contract
valid as from 1 September 2014 until 30 June 2015.
5.
According to the Claimant, as part of the negotiations for his definitive transfer
to Club F, he signed a second employment contract with the Respondent valid
as from 1 July 2015 until 30 June 2016 (hereinafter: the second contract). The
copy on file of the second contract is dated 1 July 2015. According to the player,
the contract was signed by Club C’s Sporting Manager, Manager G.
6.
According to the second contract, the Claimant was entitled to EUR 338,000 net
for the 2015-2016 season.
7.
Art. 3 of the second contract provided that: “the parties, by executing this
employment contract, acknowledge and undertake to abide by all the
regulations set forth in the Collective Bargaining Agreement in force (its
content and relevant attachments), among which, (…) art 3.1.-3.5. (duty to
deposit the Contract and the other Agreements); art. 3.4 and 3.6. (necessity of
the approval of the Contract and of the other Agreements; effects and
indemnity in the absence) […]”.
8.
Moreover, art. 4 of the contract stated that: “all claims concerning the
interpretation, performance or termination of this Contract or of the other
Player A, Country B / Club C, Country D
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agreements, as well as any other dispute arising out of the employment
relationship between the Player and the Club will be submitted to the
[Arbitration Panel H], that will issue its decision according to the modalities,
deadlines and provisions of the relevant Regulations, which constitute annex to
the Collective Bargaining Agreement”.
9.
Pursuant to Art. 5 of the contract: “By executing this contract, the parties
undertake: (…)
–to abide by the rules of the Statutes and of the Football Association;
–to accept the full and definitive effect of any decision issued by the Football
Federation J, its Bodies and delegated entities (…) as well as the decisions
rendered by the Arbitration Panel, by declaring in particular that they accept
without limitations the arbitration clause set forth under art. 30 of the Football
Federation J Statutes”.
10.
On 24 September 2015, the Claimant and the Club of Country B, Club K
(hereinafter: Club K) signed an employment contract valid as from the date of
signature until 31 July 2016, in accordance with which the Claimant was entitled
to a monthly salary of USD 10,000 net and a bonus of USD 500 per match
played. According to the information contained in the Transfer Matching
System (TMS), the player was registered with Club K under the status “Engage
out of contract free of payment” on 1 October 2015 and the employment
contract with Club F was uploaded as proof of last contract.
11.
On 18 May 2017, the Claimant lodged a claim against the Respondent before
FIFA, requesting the total amount of EUR 258,097, plus interest of 5% as from
the due date until the date of effective payment.
12.
In his claim, the Claimant held that he is basing his claim on the difference
between what he was supposed to receive in accordance with the second
contract signed with the Respondent, which according to the Claimant
remained unpaid, and what he received in accordance with the contract with
Club K.
13.
In this regard, the Claimant explained that as he occupied a spot with the
Respondent as a foreign player and as part of the negotiations of the
Respondent to bring another foreign player from Club F to the squad of the
Respondent, several documents were concluded between him, the Respondent,
and Club F, in order to free a foreign player spot in the squad of the
Respondent, send him to Club F and subsequently resume the employment
relationship with the Respondent.
14.
Along this line, the Claimant sustained that the only reason why he signed the
second contract, was, allegedly, that he was only supposed to go Club F on a
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temporary basis, but the transfer “had to be done on a permanent [basis]”.
Furthermore, the Claimant highlighted that the second contract matches with
the last season of the first contract.
15.
In this context, the player maintained that as “he was not going to be taken
into account by the [Club C’s] coach” and he occupied a foreign player spot, his
contract was not registered and as a consequence, he ended up as a “free
player”, reason for which he signed with Club K on 24 September 2015.
16.
Furthermore, the Claimant held that his transfer to Club K was similar to when
he went to Club F, except that in this case “Club C did not terminate the
contract”, but instead, allegedly, orally undertook the obligation to pay the
difference in salary from the contract with Club K. The Claimant sustained that
the difference in salaries has not been covered by the Respondent, which is the
motivation for the present claim.
17.
In respect to the claimed amount of EUR 258,097, the Claimant explained that
this amount corresponds to the amount he was supposed to receive from the
Respondent, i.e. EUR 338,000 under the second contract, minus the amounts he
received from the contract with Club K, including salaries of USD 100,000 and 7
match bonuses. The Claimant explained he made his calculations based on an
exchange rate of USD 1 = EUR 0.85144.
18.
Finally, the Claimant declared that since the Respondent did not pay the
aforementioned amount, he contacted the Respondent on several occasions,
namely on 9 March 2017, 5 May 2017, and subsequent email exchanges
between the legal representatives of the player and the Respondent during the
month of May 2017, wherein he requested the payment of the amount
allegedly owed by the Respondent.
19.
The Respondent, on its part, has preliminarily challenged FIFA’s competence to
deal with this matter on the basis of art. 4 of the contract, as it sustained that
the “Arbitration Panel H provided by the League L (hereinafter: the League L)”
had exclusive jurisdiction over this matter, in connection with the Collective
Bargaining Agreement for the “A League L”, currently applicable.
20.
In this context, Club C asserted that the “Arbitration Panel H” complies with the
requirements established in art. 22 lit. b) of the FIFA Regulations on the Status
and Transfer of Players (hereinafter: the Regulations).
21.
In order to support its allegation, the Respondent provided a copy of the
Collective Bargaining Agreement (hereinafter: the CBA), dated 7 August 2012,
and its corresponding translation into English. In this regard, art. 23 of the CBA
reads in its original text “Il presente Accordo avrá efficacia fino al 30 giugno
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2013 e non é tacitamente rinnovablle né prorogablle” while the non-certified
translation provided by the Respondent for said article reads: “This Agreement
shall be effective until 30 June 2017 and is neither tacitly renewable nor
extendable”. Moreover, the Respondent submitted a copy of a document
entitled “Regulations for the [Arbitration Panel H]” in Italian and its
corresponding translation into English.
22.
As to the substance of the matter, the Respondent has rejected the claim,
providing the following argumentation:
a) The Claimant did not have a contract with Club C.
1. In this regard, the Respondent argued that in accordance with art.
5 par. 2 of the Regulations “A player may only be registered with
one club at a time” and therefore, since the player entered into
an employment relationship with Club K on September 2015 as a
“free agent” and was registered with it without any transfer
instruction in TMS that involved Club C, then there was no
contract with the latter. The Respondent held that this was the
only manner the Claimant could have been registered with Club K
without its involvement, as otherwise there would have been a
breach of contract pursuant to the Regulations;
2. The Claimant did not claim anything from the Respondent during
the period of the alleged second contract and did not offer any
kind of performance nor requested to be part of the team for the
relevant 2015-2016 season.
b) If a) is rejected, then Club C argued that the contract is not valid nor
effective.
1. In this regard, the Respondent argued that the second contract
was signed by a person who was not authorized nor duly
empowered by Club C to do so. In this respect, the Respondent
held that only its President and not Manager G, is authorized to
sign a contract on behalf of Club C and provided a copy of its
“Abstract of the Historical Company Information Document”;
2. The second contract was not deposited in the league, thereby,
contravening the CBA and national law;
3. The second contract is a “non-official contract template”.
c) If a) and b) are rejected, then the Respondent argued that the Claimant
should not be entitled to receive remuneration from Club C pursuant to
the principle of aliunde perceptum, since:
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1. The Respondent did not benefit from the Claimant’s sporting
performance during the 2015-2016 season, since he was not
registered with it, and instead, was registered and played with
Club K during the relevant period and certainly received a salary
from the latter.
23.
In his replica, the Claimant insisted on the competence of FIFA’s Dispute
Resolution Chamber to deal with the matter at hand as he maintained, inter
alia, that:
a) Art. 4 of the second contract is a “predetermined clause”, which offers
no possibility of negotiation and/or modification and therefore, in the
opinion of the player, it should be considered null since it is abusive;
b) The “Arbitration Panel H” does not comply with the requirements
established in art. 22 lit. b) of the FIFA Regulations since, according to
the player, it imposes “high costs” and there is no possibility to appeal;
c) The Claimant was not registered in the Football Federation J with the
Respondent for the relevant 2015-2016 season. Fact that remains
uncontested by the parties.
24.
Furthermore, as to the substance, the Claimant insisted on his previous
argumentation and further held that since the Respondent did not register him
and did not pay its financial obligations towards him in accordance with the
second contract, he should be entitled to the requested amount. The Claimant
held that, allegedly, the Respondent told him it was not interested in his
services and that it “sent him back to his country”.
25.
Moreover, the Claimant argued that according to the documentation provided
by the Respondent, not only its President has powers to sign on behalf of the
club, and therefore, its Sporting Manager, due to his position within the
Respondent, could have had authorization to sign the second contract.
Moreover, the player highlighted that the second contract contains Club C’s
stamp.
26.
In its duplica, the Respondent repeated its position and rejected the Claimant’s
argumentation. Furthermore, the Respondent insisted that the Claimant did not
request to be registered or to be part of the Respondent’s squad and that his
first formal request to the Respondent was only made on 9 March 2017.
Player A, Country B / Club C, Country D
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II.
Cons iderations of the Dis pute Res olution Cham ber
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 17 May 2017. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2017;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
2.
Furthermore, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 22 March 2018 by means of which
the parties were informed of the composition of the Chamber, the member
Alexandra Gómez and the member Joel Talavera refrained from participating in
the deliberations in the case at hand, due to the fact that the member
Alexandra Gómez has the same nationality as the Claimant and that, in order to
comply with the prerequisite of equal representation of club and player
representatives, also the member Joel Talavera refrained from participating.
Thus, the Dispute Resolution Chamber adjudicated the case in presence of three
members in accordance with art. 24 par. 2 of the Regulations on the Status and
Transfer of Players.
3.
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 and par. 2
in combination with art. 22 lit. b of the Regulations on the Status and Transfer
of Players (edition 2018) the Dispute Resolution Chamber is in principle
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an Player of Country B
and an Club of Country D.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of clause 4 of the second
contract and alleging that the “Arbitration Panel H” of the Football Federation
of Country D had the exclusive jurisdiction over this matter. In particular, the
Chamber took note that the Respondent argued that the Collective Bargaining
Agreement concluded on 7 August 2012 is applicable and, in consequence, the
“Arbitration Panel H” should be the competent body to hear the matter at
stake.
5.
In this regard, the Chamber noted that the Respondent rejected such position
and insisted that FIFA has jurisdiction to deal with the present matter.
Player A, Country B / Club C, Country D
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6.
Taking into account the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players it is
competent to deal with a matter such as the one at hand, unless an
independent arbitration tribunal, guaranteeing fair proceedings and respecting
the principle of equal representation of players and clubs, has been established
at national level within the framework of the association and/or a collective
bargaining agreement. With regard to the standards to be imposed on an
independent arbitration tribunal guaranteeing fair proceedings, the Chamber
referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard,
the members of the Chamber further referred to the principles contained in the
FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which
came into force on 1 January 2008.
7.
While analysing whether it was competent to decide on the present matter, the
Chamber referred to the fact that the Claimant was not registered with the
Football Federation of Country D at the moment the event giving rise to the
dispute took place, i.e. 1 July 2015, the day where the second contract allegedly
concluded between the parties that was supposed to start running. The
Chamber held that, as the player was not registered with the Football
Federation of Country D at that moment, the player did not fall under the
jurisdiction of the Football Federation of Country D. The foregoing fact led the
Chamber to the conclusion that the relevant arbitration bodies in Country D
were not competent to adjudicate on the matter between the Claimant and the
Respondent.
8.
As a result, and taking into consideration the above circumstances, the Dispute
Resolution Chamber concluded that the Respondent’s objection to the
competence of FIFA to hear the present dispute has to be rejected, and that the
Dispute Resolution Chamber is therefore competent, on the basis of art. 22 b) of
the Regulations on the Status and Transfer of Players, to consider the present
matter as to the substance.
9.
In continuation, the Chamber analysed which edition of the regulations should
be applicable as to the substance of the matter at hand. 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 claim was lodged on 18 May 2017, the 2016 edition of said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
10.
Having established the foregoing, and entering into the substance of the
matter, the Chamber continued by acknowledging the above-mentioned facts
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,
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arguments and documentary evidence which it considered for the assessment of
the matter at hand. In particular, the Chamber recalled that in accordance with
art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of
proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the Transfer Matching
System (TMS).
11.
In doing so, the Chamber noted that the Claimant lodged a claim against the
Respondent maintaining that he signed a second contract with the Respondent
- which was supposed to run as from 1 July 2015 until 30 June 2016 - and
arguing that he did not receive any remuneration from the Respondent in
connection with said contract. The members of the Chamber duly took not that
according to the Claimant, since he occupied a foreign player spot in the squad
of the the Respondent - consequence of the employment relationship based on
the first contract concluded between the parties - and as part of the
negotiations of the Respondent to bring another foreign player from Club F to
the squad of the Respondent, several documents were concluded between him,
the Respondent, and Club F, in order to allegedly 1) free a foreign player spot in
the squad of the Respondent, 2) send him to Club F and 3) subsequently resume
the employment relationship with the Respondent.
12.
Along this line the DRC recalled that, according to the Claimant, the basis of his
claim is the difference between what he was supposed to receive in accordance
with the second contract signed with the Respondent and what he received in
the contract with Club K for the overlapping period, since, allegedly, the
Respondent undertook the obligation to pay the mentioned difference without
doing so.
13.
Thereafter, the members of the Chamber took note of the reply of the
Respondent as to the substance of the claim of the Claimant. In this context, the
DRC noted that the Respondent rejected the Claimant’s claim arguing that 1)
the Claimant did not have a contract with it 2) in the alternative, that the
second contract is not valid nor effective 3) in the further alternative, that the
Claimant should not be entitled to receive remuneration since the Respondent
did not benefit from the Claimant’s sporting performance during the 2015-2016
season, since he was not registered with it, and instead, was registered and
played with Club K during the relevant period and certainly received a salary
from the latter.
14.
In view of this dissent between the parties in respect of the basic question as to
the existence of a contract between the parties for the period claimed by the
Claimant and its validity, 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.
Player A, Country B / Club C, Country D
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15.
In respect to the existence of the second contract, the Chamber was satisfied
with the fact that the Claimant submitted a copy of a written contract with the
Respondent for the specific time period claimed. The DRC took into account
that the alleged non-existence of the second contract argued by the
Respondent is contradictory with its own argument regarding the alleged
competence of the “Arbitration Panel H” to deal with the present matter, since
the Respondent itself argued that on the basis of clause 4 of the second
contract, the parties had opted to submit their dispute to an arbitration
tribunal. In consequence, the DRC concluded that the existence of the second
contract is evident.
16.
Having stated the above, the DRC addressed the issue of the validity of the
second contract in view of the Respondent’s allegations that the contract at the
basis of the dispute was signed by a person whom, according to it, did not have
authorization to sign on behalf of Club C. Furthermore, the members of the
Chamber duly observed that the Respondent held that the second contract is
not valid since it is not the official template for contracts.
17.
Against such background, the DRC decided that such argumentation cannot be
upheld due to the fact that in accordance with the principle of good faith, bona
fide, to be respected by the parties during the conclusion of contracts, the
Claimant was in good faith authorized to believe that the person signing the
relevant agreement on behalf of the Respondent was legally authorized to sign
it on behalf of the Respondent. Equally and in accordance with the
aforementioned principle of burden of proof, the DRC outlined that the
Respondent never provided documentary evidence demonstrating that the
Claimant was aware of the situation outlined by the Respondent at the moment
of signing the pertinent agreement. With regards to the argument of the
Respondent in respect to the contract not being the standard template, the
members of the Chamber were of the view that said argument has to be
rejected since concluding a contract with a template or without a template, is
not part of the essential elements of a contract.
18.
Consequently, the Chamber considered that all essentialia negotii were present
in the second contract and that it should be considered per se as a valid and
binding contract.
19.
Notwithstanding the foregoing, the Chamber noted that it remains uncontested
by the parties that the second contract was not executed.
20.
This being established, the DRC again recalled the content of 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, and, after a
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thorough analysis of the documentation on file as well as the argumentation on
the present matter, the members of the Chamber were of the unanimous
opinion that there is no evidence on file to support that the Claimant was
interested in the execution of the second contract, and what is more, the
circumstances surrounding the present matter led to the indication that the
Claimant did not consider himself bound by the second contract.
21.
In this regard, the DRC took into consideration that he Claimant did not provide
evidence regarding his allegations that the Respondent, allegedly, told him it
was not interested in his services after the signature of the second contract.
22.
Furthermore and against such background, the DRC deemed important to
emphasize that it remained uncontested that the Claimant did not request the
execution of the second contract, and that his first formal request to the
Respondent was only on 9 March 2017, i.e. 1.5 years after the second contract
was supposed to start.
23.
Moreover, the Chamber found it worthwhile to underline that, on 24
September 2015, Claimant signed an employment contract with another club
and from the documentation of file it can be established that Claimant
considered himself a “Free player” at the time.
24.
On account of the above and taking into consideration the Chamber’s
longstanding jurisprudence in this respect, the documentation by the Claimant,
and the development of the factual circumstances as displayed by the parties,
the Chamber had to conclude that even though a valid contract per se had been
signed by the parties, the contract was never executed as both parties were not
interested in its execution.
25.
All the above led the Dispute Resolution Chamber to conclude that the claim of
of the Claimant is admissible, but has to be rejected.
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III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is rejected.
*****
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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
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