Labour Disputes
Texto da decisão
Decis ion of the Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 8 March 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (S outh Africa), member
S tefano S artori (Italy ), member
Pav el Piv ov arov (Rus s ia), member
Muzam m il bin Moham ed (S ingapore), 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 1 September 2013, 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 valid from 1 September 2013 until 30 June 2014.
2.
According to the Claimant, on 28 November 2013, the parties allegedly signed an
extension of the contract (hereinafter: the contract extension), valid for the 20142015 and 2015-2016 sporting seasons.
3.
According to the Claimant, he was entitled to receive a remuneration of USD
750,000 for the 2014-2015 and 2015-2016 sporting seasons based on the alleged
contract extension.
4.
On 21 October 2014, the Claimant put the Respondent in default, asking the latter
to clarify his contractual situation and affirming that “the owner of the club doesn’t
want to give [him] free and doesn’t want to give [him] [his] money”.
5.
On 13 December 2014, the Claimant put the Respondent in default a second time,
claiming “he has been refused to participate in any football activities despite the
fact that they both renewed in November 2013 the contract” and asking the
Respondent how it wanted to resolve the matter.
6.
On 12 December 2016, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting the following:
a. USD 31,250 as outstanding remuneration corresponding to the alleged
monthly salary of December 2014 in accordance with the alleged contract
extension, plus interest of 5% p.a. from the due date;
b. USD 562,500 as compensation for breach of contract, plus interest of 5%
p.a. from the date of claim, amount broken-down as follows:
i. USD 187,500 corresponding to the remaining 6 months of the 20142015 sporting season;
ii. USD 375,000 corresponding to the 2015-2016 sporting season.
7.
In his statement of claim, the Claimant explained that the Respondent allegedly
refused to give him a copy of the contract extension. The Claimant acknowledged
not being able to provide a copy of the alleged contract extension in consequence.
8.
Along this line, the Claimant provided FIFA with a copy of his agent’s “Professional
Players Marketing Agreement”, dated 28 November 2013, signed by the player’s
agent, Agent E, and the Respondent, in which it is stipulated the following:
[…]“whereas, the first party [i.e. Club C], which is one of the most famous sporting
clubs in Country D, is desirous to renew the contract with a foreign professional
football player, and whereas the second party, Agent E, is an agent of the foreign
Player A, Country B / Club C, Country D
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football player with whom the club wished to renew contractual relations ; whereas
the first party has shown sincere desire in renewing contractual relations with the
player/Player A […].
9.
Despite not having a copy of the contract extension, the Claimant claims that the
existence of such extension can be proven with his agent’s “Professional Players
Marketing Agreement”, which stipulates in its art. 2 that “the first party shall pay
the second party commission amounting to 10% of the value of the renewal of the
professional player’s contract amounting to USD 75,000”. According to the
Claimant, if the amount of USD 75,000 corresponds to 10% of the value of the
player’s contract extension, the total value of said contract extension is USD 750,000
for the 2014-2015 and 2015-2016 sporting seasons.
10.
In this regard, the Claimant claims that from the beginning of the 2014 sporting
season, the relationship between the parties had deteriorated. The Claimant asserts
that “at the beginning, a systematic delay in the payment of the player’s salaries
had been observed” and that it further led to the Claimant not being paid anymore.
11.
Furthermore, the Claimant affirms that the Respondent failed to pay his salaries for
the months of August, September, October, November and December 2014 but
admits that all the abovementioned alleged outstanding salaries are time-barred
except his salary of December 2014.
12.
After having tried to notify the claim to the Respondent on two occasions, the claim
was sent for a third time to the Respondent via the Football Association of Country
D. In this regard, the Football Association of Country D provided FIFA with a written
confirmation of receipt of the Claimant’s claim by the Respondent on 25 September
2017.
13.
In its reply, the Respondent alleges that it had not received any correspondence
from FIFA or from the Claimant in the matter at hand and that “the letter we
received is without any attachment in relation to the complaint”. The Respondent
affirms “that the relationship with the player has been finished without any
problem and also with complete satisfaction of the player”.
14.
In response to FIFA’s request, the Claimant indicated that he had signed an
employment contract with the Club of Country F, Club G, valid from 17 May 2015
until 30 June 2016, providing for the payment of “1,500 per week payable by
monthly instalments in arrear from 15 July 2015 to 30 June 2016”.
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 case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 12 December
2016. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (2015 edition; hereinafter:
Procedural Rules) are 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 (2018 edition) 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 employment
relationship between the two aforementioned parties.
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 (2018
edition), and considering that the present claim was lodged on 12 December 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. The Chamber
started by acknowledging the facts of the case, as well as the documentation
contained in the file. The Chamber, however, 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 this respect, the members of the Chamber recalled that the parties had signed an
employment contract valid from 1 September 2013 until 30 June 2014. The
Chamber equally noted that, according to the Claimant, he had, on 28 November
2013, concluded an extension of said employment contract with the Respondent,
allegedly valid for the 2014-2015 and 2015-2016 sporting seasons, in accordance
with which the Respondent allegedly had undertaken to pay him the total amount
of USD 750,000.
6.
In continuation, the DRC observed that the Claimant did not provide a copy of the
alleged contract extension.
Player A, Country B / Club C, Country D
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7.
Furthermore, the members of the DRC noted that, on 12 December 2016, the
Claimant lodged a claim against the Respondent maintaining that the Respondent
allegedly failed to pay the entirety of his remuneration due between August 2014
and December 2014 in accordance with the alleged contract extension. In this
regard, the Chamber took not that the Claimant admitted that all the
abovementioned [alleged] outstanding salaries are time-barred except his salary of
December 2014. Consequently, the Claimant claims outstanding remuneration in
the amount of USD 31,250, corresponding to his monthly salary of December 2014
as well as compensation for breach of contract by the Respondent in the amount of
USD 562,000.
8.
The DRC furthermore took due note of the fact that the Respondent, on its part,
declared that “the relationship with the player has been finished without any
problem and also with complete satisfaction of the player”.
9.
Taking into consideration that the Claimant’s claim refers to a period of time after
the natural expiry of the contract with the Respondent, i.e. 30 June 2014 and that
the Claimant was not able to provide a copy of the alleged contract extension that
would cover the relevant period of time, the DRC considered that the main issue is
to establish whether or not an extension of the employment contract between the
Claimant and the Respondent had been concluded.
10.
In this regard, i.e. the basic question as to whether or not an extension of the
employment contract between the parties 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 up to the
player to prove that the contract extension, on the basis of which he claims
outstanding remuneration and compensation for breach of contract from the
Respondent, indeed existed.
11.
Having stated the above, the DRC recalled that the Claimant maintained that he
never received a copy of the contract extension he asserts having signed with the
Respondent and that, although being unable to provide a copy of the contract
extension at the basis of his claim, he deemed that its existence can be proven with
other means. To this end, the Claimant submitted additional documentation in
support of his claim which was in continuation examined by the members of the
Chamber.
12.
In this context, the DRC took note of the documentation provided by the Claimant,
consisting in the “Professional Players Marketing Agreement”, dated 28 November
2013, which was concluded between the Claimant’s agent and the Respondent and
which established the alleged commission fees of the Claimant’s agent in relation to
Player A, Country B / Club C, Country D
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the contract extension allegedly concluded between the Claimant and the
Respondent.
13.
In this regard, the Chamber observed that the “Professional Players Marketing
Agreement” does not explicitly indicate that an extension of the employment
contract had been concluded between the Claimant and the Respondent and noted
that such document only refers to a hypothetical extension of the employment
contract. In particular, the DRC noted that said agreement stipulates that “the first
party, which is one of the most famous sporting clubs in Country D, is desirous to
renew the contract with a foreign professional football player […] whereas the First
Party has shown sincere desire in renewing contractual relations with the player
Player A […]”. Moreover, the DRC noted that the Claimant himself is not a party to
this agreement.
14.
Having duly taken note of the aforementioned documentation presented by the
Claimant, 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, beyond doubt, by documentary evidence, that the said
parties had indeed entered into a respective labour agreement covering a period of
time after the contract, 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 likely but are not certain to indicate 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 contract.
15.
In respect of the foregoing, the members of the Chamber had to conclude that the
“Professional Players Marketing Agreement” presented by the Claimant did not
prove beyond doubt that the Respondent and the Claimant, on 28 November 2013,
had validly extended the employment contract beyond its natural expiry, i.e. 30
June 2014.
16. What is more, even if it would have been possible to establish on the basis of the
documents on file, other than an employment contract, that the parties had
entered into a labour agreement, the Chamber wished to highlight that it would
need to be in possession of such labour agreement in order to be able to properly
assess the claim of the Claimant.
17. As a consequence, the DRC decided that, since the Claimant had not been able to
prove beyond doubt that a contract extension covering the period as from 30 June
2014 had validly been concluded between himself and the Respondent, there was
Player A, Country B / Club C, Country D
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no possibility for the Chamber to enter into the question whether or not such
alleged contract extension had been breached.
18. All the above led the Dispute Resolution Chamber to conclude that the claim of the
Claimant has to be rejected.
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
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
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