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 matter between the player,
Play er A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case:
1.
On 4 May 2016, the player of Country B, Player A (hereinafter: the Claimant),
and the club of Country D, Club C (hereinafter: the Respondent), signed an
employment contract (hereinafter: the contract), valid as from 6 July 2016 until
5 July 2019.
2.
According to clause 4 of the contract, the Claimant was to be remunerated as
follows:
USD 44,556 payable on 20 July 2016;
Monthly remuneration of USD 13,000 “from July 2016 to June 2017”;
USD 54,556 payable on 30 July 2017;
Monthly remuneration amounting to USD 16,750 “from July 2017 to June
2018”;
USD 79,556 payable on 30 July 2018;
Monthly remuneration of USD 23,000 “from end of July 2018 to the end of
June 2019”.
3.
In addition, article 5 of the contract reads as follow:
“5. Contract Termination
5.1 The [Respondent] shall be entitled to terminate the employment contract of
the [Claimant] immediately if the [Claimant]:
5.1.1 Shall be guilty of Gross Misconduct;
5.1.2 Shall fail to heed any final written warning given under the provisions of
the [Respondent] disciplinary Policy; or
5.1.3 Is convicted of any criminal offense where the punishment consists of a
sentence of imprisonment of two weeks or more (which is not suspended).
5.2 In case of the [Respondent] wants to terminate the contract anytime during
the contract for any reason not mentioned in clause 5.1, the [Respondent] shall
pay the [Claimant];
5.2.1 $40,000 (Forty Thousands US Dollars)”.
4.
Through a correspondence dated 28 May 2017, the Respondent informed the
Claimant that the “contract has been terminated by 28 May 2017”.
5.
By means of a handwritten letter dated 30 May 2018, the Claimant declared:
“…to have received by email the termination letter of my contract in Club C on
28/05/2017. Being still pending the payment of the fine rescission [USD 40,000]
along with the salary of December 2016 [USD 13,000]. I authorize the
[Respondent] to make the transfer of my termination of contract and the
December salary the following account and following amount. The following
value 40,000 thousand USD about penalty of contract term and 13,000 thousand
USD for December salary 2016. I authorize [the Respondent] to transfer to my
agent […] the following amount 14,000 thousand in the currency of Country D
from my salary of December about he’s commission…”.
Player A, Country B / Club C, Country D
2/9
6.
On 14 July 2017, the Claimant lodged a claim before FIFA against the
Respondent for the unilateral termination of contract without just cause. In
particular, the Claimant claimed USD 611,112 as compensation for breach of
contract plus 5% interest p.a. as of 28 May 2017 until the effective date of
payment, amount that according to the Claimant corresponds to the residual
value of the contract, i.e. from 28 May 2017 until 5 July 2019.
7.
The Claimant further requested “any additional compensation this honourable
Dispute Resolution Chamber deems appropriate due to the bad faith and
misleading behaviour of the [Respondent]”.
8.
In support of his claim, the Claimant held that the Respondent terminated the
contract without just cause, based on an abusive, potestative and unilateral
clause that infringes FIFA’s Regulations and that “should be deemed completely
null and void”. According to the Claimant, clause 5 of the contract is a unilateral
provision established in the exclusive benefit of the Respondent as it allows the
Respondent to terminate the contract, anytime and without just cause, by simply
paying USD 40,000, which is less than the 5% of the total value of the contract.
9.
In continuation, the Claimant explained that after the termination of the
contract, the Respondent imposed upon him, as a condition to leave, the
drafting of a handwritten letter in which he confirmed that the Respondent
owed him USD 40,000 as penalty for the termination of the contract.
10.
In this regard, the Claimant explained that through the above-mentioned letter,
he was simply confirming the reception of the Respondent’s termination letter,
and that said letter could not be considered as an agreement regarding the
termination of the contract.
11.
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 the termination of the contract “occurred with the full consent” of the
Claimant. In this respect, the Respondent held that “the present dispute entails
a unilateral contractual termination by consent, rather than a litigious unilateral
contractual termination”.
12.
Subsequently, the Respondent stated that with his handwritten letter dated 30
May 2017, the Claimant had acknowledged the Respondent’s unilateral
contractual termination, accepted the validity of clause 5.2.1 of the contract and
the amount stipulated in it as penalty for compensation for the early contractual
termination, also authorizing the Respondent to pay the amount of 14,000 in
the currency of Country D to his agent as commission.
13.
Furthermore, the Respondent argued that the Claimant was not forced to sign
his letter dated 30 May 2018 and that he did so freely.
Player A, Country B / Club C, Country D
3/9
14.
Within this context, the Respondent explained that it proceeded to perform the
payment of USD 49,268, to the Claimant’s bank account, along with the
payment of 14,000 in the currency of Country D (equivalent to USD 3,467
according to the Respondent) to the Claimant’s agent. According to the
Respondent, these amounts covered the total USD 53,000 debt that the
Respondent had with the Claimant and, consequently, the Respondent was no
longer “legally obliged to pay the [Claimant] any further amount in relation to
the contract or its termination”.
15.
In view of the above consideration, the Respondent explained that it would
refrain from entering into the analysis of the validity of clause 5 of the contract
as this was fully validated by the Claimant.
16.
In his replica, the Claimant explained that the wording used by the Respondent
in its reply to the claim is contradictory. In particular, the Claimant explained
that “there is no such thing as unilateral contractual termination by consent” as
it was presented by the Respondent.
17.
In continuation, the Claimant pointed out that the Respondent “failed to
disclose the circumstances under which [he] accepted” the Respondent’s
payment. According to the Claimant, the Respondent coerced him to accept the
termination of the contract.
18.
In this regard, the Claimant explained that after signing the contract with the
Respondent, he was loaned to the club of Country D “Club E” from January 2017
to July 2017. According to the Claimant, “at the time he was loaned to [Club E]
he already had salaries unpaid by [the Respondent]”. In addition to that, the
Claimant explained that during the duration of the loan he “also remained
mostly unpaid”. Within this context, and considering that the Respondent knew
the Claimant’s financial struggles, the Claimant held that the Respondent
informed him that it “would pay him his late salaries and an additional
US$40,000.00 if – and only if- he consented with the unilateral termination”.
19.
In support of these allegations, the Claimant submitted different “Whatsapp”
audio messages from the alleged Respondent’s Transfer Matching System
(hereinafter: TMS) manager. According to the Claimant, these demonstrate that
the Respondent decided to unilaterally terminate the contract and forced him
to accept the contract termination. In addition to that, the Claimant argued that
said audios also prove that the Respondent would pay him his late salaries and
handle his “release” only if he agreed on the contract’s termination.
20.
With those considerations in mind, the Claimant argued that this is an “example
of duress”. Therefore, the Claimant’s handwritten letter should not be
considered as his consent to the “unilateral termination carried out by the
[Respondent]”.
Player A, Country B / Club C, Country D
4/9
21.
The Respondent submitted its duplica, reiterating its arguments and confirming
its positions with regards to the Claimant’s claim.
22.
In addition to that, the Respondent stressed that the Claimant was acting in bad
faith as he was not forced to accept, and could have refused, the termination of
the contract. In this respect, the Respondent pointed out that it does not make
sense that the Claimant wrote, signed and sent the handwritten letter if he did
not agree with its contents.
23.
Finally, the Respondent referred to the“Whatsapp” audio messages provided by
the Claimant and argued that it “rejects” them as it “ignores” their veracity
and/or authenticity.
24.
Upon FIFA’s request, the Claimant informed that he entered into another
employment contract with the club of Country F, Club G, valid as from 5 August
2017 until 31 May 2018. This contract provides a total remuneration of USD
60,000 payable in ten instalments of USD 6,000 each. However, the Claimant
informed that this contract was terminated by mutual agreement on 19
December 2017.
25.
Additionally, the Claimant informed that on 17 January 2018 he signed another
employment contract with the club of Country H, Club L, valid until 30 June
2018. This contract provides a total remuneration of USD 55,000 payable in five
instalments of USD 11,000 each.
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 14
July 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 of Country B and a club of Country
D.
Player A, Country B / Club C, Country D
5/9
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 14 July 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, on 4 May 2016, the Claimant and the
Respondent, signed an employment contract valid as from 6 July 2016 until 5
July 2019. According to clause 4 of the contract, the Claimant was to be
remunerated as follows:
USD 44,556 payable on 20 July 2016;
Monthly remuneration of USD 13,000 “from July 2016 to June 2017”;
USD 54,556 payable on 30 July 2017;
Monthly remuneration amounting to USD 16,750 “from July 2017 to June
2018”;
USD 79,556 payable on 30 July 2018;
Monthly remuneration of USD 23,000 “from end of July 2018 to the end of
June 2019”.
6.
Thereafter, the DRC observed that article 5 of the contract stipulates:
“5. Contract Termination
5.1 The [Respondent] shall be entitled to terminate the employment contract of
the [Claimant] immediately if the [Claimant]:
5.1.1 Shall be guilty of Gross Misconduct;
5.1.2 Shall fail to heed any final written warning given under the provisions of
the [Respondent] disciplinary Policy; or
5.1.3 Is convicted of any criminal offense where the punishment consists of a
sentence of imprisonment of two weeks or more (which is not suspended).
5.2 In case of the [Respondent] wants to terminate the contract anytime during
the contract for any reason not mentioned in clause 5.1, the [Respondent] shall
pay the [Claimant];
5.2.1 $40,000 (Forty Thousands US Dollars)”.
7.
In continuation, the Chamber took note that through a correspondence dated
28 May 2017, the Respondent informed the Claimant that the “contract has
been terminated by 28 May 2017”.
Player A, Country B / Club C, Country D
6/9
8.
Subsequently, the members of the Chamber acknowledged that, by means of a
handwritten letter dated 30 May 2018, the Claimant declared:
“…to have received by email the termination letter of my contract in Club C on
28/05/2017. Being still pending the payment of the fine rescission [USD 40,000]
along with the salary of December 2016 [USD 13,000]. I authorize the
[Respondent] to make the transfer of my termination of contract and the
December salary the following account and following amount. The following
value 40,000 thousand USD about penalty of contract term and 13,000 thousand
USD for December salary 2016. I authorize [the Respondent] to transfer to my
agent […] the following amount 14,000 thousand in the currency of Country D
from my salary of December about he’s commission…”.
9.
The DRC further observed that, on 14 July 2017, the Claimant lodged a claim
before FIFA against the Respondent for the unilateral termination of contract
without just cause. In particular, the Claimant claimed USD 611,112 as
compensation for breach of contract plus 5% interest p.a. as of 28 May 2017
until the effective date of payment, amount that according to the Claimant
corresponds to the residual value of the contract, i.e. from 28 May 2017 until 5
July 2019.
10.
In this regard, the Chamber noted that the Claimant argued that the
Respondent terminated the contract without just cause, based on clause 5 of
the contract which according to the Claimant is a unilateral provision established
in the exclusive benefit of the Respondent.
11.
In addition, the members of the Chamber observed that the Claimant held that,
after the termination of the contract, the Respondent coerced him to draft a
handwritten letter in which he confirmed that the Respondent owed him USD
40,000 as a penalty for the termination of the contract. According to the
Claimant, said letter cannot be considered as an agreement regarding the
termination of the contract as he was simply confirming the receipt of the
Respondent’s termination letter.
12.
Conversely, the Dispute Resolution Chamber furthermore took due note of the
fact that the Respondent, on its part, rejected the Claimant’s claim and stated
that the Claimant accepted the termination of the contract as he wrote and
signed the above-mentioned handwritten letter without any type of coercion.
13.
Moreover, the Chamber acknowledged that the Respondent explained that it
proceeded to perform the payment of USD 49,268, to the Claimant’s bank
account, along with the payment of 14,000 in the currency of Country D to the
Claimant’s agent. According to the Respondent, these amounts covered the
total USD 53,000 established in the handwritten letter and consequently, the
Respondent was no longer legally obliged to pay the Claimant any further
amount of money.
Player A, Country B / Club C, Country D
7/9
14.
After having carefully examined the parties’ positions, the Chamber held that
the main issue it first and foremost had to deal with, was to determine whether
the Claimant provided or not his consent to the termination of the contract.
15.
In this regard, the members of the Chamber acknowledged that the Claimant
wrote and signed a document containing a declaration in accordance with
which he accepted the payment of USD 53,000 for the termination of the
contract (USD 40,000 as “fine rescission” and USD 13,000 as outstanding salary
of December 2016). Moreover, the DRC noted that the Claimant authorized the
Respondent to transfer 14,000 in the currency of Country D to the Claimant’s
agent as “commission”.
16.
This being established, the DRC highlighted that according to the information
submitted to the file, it has remained undisputed that the Respondent duly
performed said payments (cf. point I.14 and I.17 above).
17.
Regarding the argument of the Claimant that the Respondent coerced him to
accept the termination of the contract, the members of the DRC 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 establish that the Claimant failed to present
relevant evidence in support of his allegation that he had been coerced, by the
Respondent, into accepting the termination of the contract under the terms
provided for in the contract.
18.
In relation to the “Whatsapp” audio messages provided by the Claimant from
the alleged Respondent’s TMS manager, which the Respondent rejected as it
ignores their veracity and/or authenticity, the Chamber pointed out that it must
be very careful with accepting and analysing documents and evidence provided
by the parties. Having said that, the DRC concluded that the probative value of
such audios is rather low and therefore, they cannot be considered as a
substantial evidence proving the Claimant’s allegations.
19.
In the light of all of the above, the members of the DRC concluded that by
drafting the handwritten letter and accepting the payment of the USD 53,000
established in said document, the Claimant provided his consent to the
termination of the contract and waived his right to claim any further monies
from the Respondent.
20.
Consequently, the Dispute Resolution Chamber decided that it must reject the
claim put forward by the Claimant.
*****
Player A, Country B / Club C, Country D
8/9
III. Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, 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
Player A, Country B / Club C, Country D
9/9