Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 April 2014,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Alejandro Marón (Argentina), member
Theo van Seggelen (Netherlands), member
Takuya Yamazaki (Japan), member
on the claim presented by the player,
Player T, from country S
as Claimant
against the club,
Club L, from country G
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 30 August 2010, Player T, from country S (hereinafter: the player or the
Claimant), and Club L, from country G (hereinafter: the club or the Respondent),
entered into an employment contract (hereinafter: the contract) valid as from 30
August 2010 until 30 June 2012. Said contract is signed on behalf of the
Respondent by Mr K.
2.
According to the contract, the Respondent agreed to pay/provide the Claimant:
EUR 857 as monthly salary, payable at the latest at the end of each month;
EUR 857 as Christmas bonus; EUR 428.50 as Easter bonus and EUR 428.50 as
holiday bonus;
EUR 56,000 (net) to be paid in 5 instalments (EUR 15,000 on 30 November
2010; EUR 8,000 on 28 February 2011; EUR 10,000 on 30 August 2011; EUR
15,000 on 30 November 2011; and EUR 8,000 on 28 February 2012);
Bonuses for the season 2010/2011 – EUR 10,000 if the club is promoted to a
higher division; EUR 5,000 if the player completed 23 participations in
matches for more than 46 minutes, each;
Bonuses for the season 2011/2012 – EUR 10,000 “if the team is playing in
the Superleague and remains in the Superleague for the period 20122013”;
Accommodation.
3.
Art. 10 of the contract reads as follows: “All disputes between the parties are
settled exclusively from the Appeals Committee for the resolution of financial
disputes (PEEOD) of the country G Football Federation at first instance, and the
court of Arbitration of the country G Football Federation at Second Instance.”
4.
Furthermore, the parties signed an agreement written in the country G language
which is designated “Private Subsidiary Contract” and dated 6 July 2010, but
which the Claimant claims to have been signed on the same date as the contract
(hereinafter: the private agreement). The private agreement only indicates the
financial obligations of the Respondent and is signed by the Claimant and a
certain Mr L, who, according to the Claimant, is the Respondent’s general
manager. Also, the private agreement contains the stamp of the Respondent.
5.
According to the private agreement, the Respondent agreed to pay the Claimant:
EUR 10,000 (net) on 30 May 2011;
EUR 15,000 (net) on 30 June 2011;
EUR 15,000 (net) on 30 May 2012; and
EUR 20,000 (net) on 30 June 2012.
Player T, from country S / Club L, from country G
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6.
By letter dated 1 December 2011, the Claimant terminated the contract invoking
just cause, alleging various outstanding salaries.
7.
On 8 January 2012, the Claimant filed a claim before FIFA against the Respondent
for breach of contract and requested the payment of the amount of EUR
126,351,69, plus 5% interest, according to the following breakdown:
- EUR 73,036.10 as outstanding remuneration, calculated as follows:
a) EUR 46,353.69 for the season 2010/2011:
The Claimant claimed to have only received the amount of EUR 21,930,31,
while he was entitled to EUR 68,284:
- EUR 8,570 for the salaries between 30 August 2010 and 30 June 2011;
- EUR 1,714 for the bonuses relating to Christmas, Easter and holidays;
- EUR 48,000 for the instalments due on 30 November 2010, 28 February
2011, 30 May 2011 and 30 June 2011;
- EUR 10,000 for the promotion bonus.
The Claimant indicated that he does not accept a penalty imposed by the
Respondent on 12 November 2011 in the amount of EUR 5,000.
b) EUR 26,682.41 for the season 2011/2012:
The Claimant claimed that, until 30 November 2011, he only received EUR
2,602.59, while he was entitled to EUR 29,285:
- EUR 4,285 for the salaries between 30 July 2011 and 30 November 2011;
- EUR 25,000 for the instalments due on 30 August 2011 and 30 November
2011.
- EUR 53,315.59 as compensation for breach of contract.
8.
According to the Claimant, on 28 September 2011, he reminded the Respondent
that the amount of EUR 37,361 was outstanding and that the Claimant ”should be
immediately allowed to join the team and to be involved in the training session
daily.”
9.
On 17 October 2011, the Claimant reminded the Respondent that, by that time,
the amount of EUR 42,010 was outstanding and, again, requested that he would
be allowed to join the training immediately.
10.
On 20 October 2011, the Respondent replied stating that there were no
outstanding payments due to the Claimant and asked for a detailed breakdown
of the amount claimed. Also, the Respondent emphasised that, contrary to the
statements of the Claimant, the latter was allowed to train with the team.
Player T, from country S / Club L, from country G
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11.
On 25 October 2011, the Claimant sent the Respondent a breakdown of the
amount claimed.
12.
By letter dated 31 October 2011, the Respondent replied that it was “extremely
surprised”, since the private agreement “does not exist in the records of our club.
This document is not genuine and therefore we object to this agreement as well
as the whole amount stipulated in it.” In continuation, the Respondent stated
that “Mr. L, who is apparently the signatory of this alleged private agreement,
has never been a legal representative of Club L and he has never been authorized
to represent the club in front of third parties or sign any agreements on behalf of
Club L.”
13.
On 6, 18 and 26 November 2011, the Claimant again reminded the Respondent of
the outstanding amounts.
14.
By letter dated 17 November 2011, the Respondent decided to unilaterally
terminate the contract and filed such termination with the First Instance Disputes
Resolution Committee of the country G Football Federation.
15.
The Claimant asserted that there were no reasons for the Respondent not to fulfil
its contractual obligations. He mentions that the Respondent never reprehended
him for anything and that there is no evidence of any misconduct. The Claimant
further stated that “Due to the individual training without a coach and medical
care, the conditions for a professional player were not appropriate.” and that he
feels cheated, because the Respondent disputes the validity of the private
agreement.
16.
On 6 December 2011, the Respondent notified the Claimant that he should be
present on 12 December 2011 at the country G Football Federation for a hearing.
17.
On 8 December 2011, the Claimant responded stating that he had elected FIFA as
the competent deciding body to resolve the dispute and therefore declined to
appear before the country G Football Federation.
18.
On 12 January 2012, the PEEOD of the country G Football Federation decided to
reject the application-notice for the termination of the contract by the
Respondent.
19.
On 31 January 2012, the Court of Arbitration of the country G Football Federation
decided, on appeal, that the Respondent did have just cause to terminate the
contract. The proceedings were conducted without the Claimant being present.
20.
In its reply to the Claimant’s claim before FIFA, the Respondent first of all
disputed FIFA’s competence to deal with the present matter on the basis of clause
10 of the contract. The Respondent claimed that the national arbitration bodies
Player T, from country S / Club L, from country G
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of the country G Football Federation are constituted in compliance with FIFA’s
rules and regulations.
21.
On 22 July 2013, the Court of Arbitration for Sport (CAS) rendered an award
whereby it decided that the national arbitration bodies of the country G Football
Federation fulfil the requirements of equal representation and of an independent
chairman and guarantee fair proceedings.
22.
As to the substance of the matter, the Respondent disputed the validity of the
private agreement, by stating that the signatory, Mr L, was a mere scout of the
Respondent and had no power whatsoever to bind the Respondent. The
Respondent adds that no one was aware of the private agreement or its content.
23.
The Respondent claimed that the Claimant, who was already playing in the Greek
Leagues and wished to join the Respondent, was offered to Mr L in July 2010. The
Respondent held that the private agreement was only signed because it wanted
the Claimant to join the team in training sessions to assess his quality before
agreeing to sign him. The Claimant accepted this, but “because of the fact that he
desperately wanted to join our club, agreed, but requested from Mr L to ensure
him in writing that in the event of a final agreement, the contract period would
be for two years and he would receive the amount of EUR 60,000 net plus certain
bonuses that were to be stipulated at the time of signature of the contract with
the then President of the Club, Mr K”. The Respondent insisted that the
agreement signed by Mr L was not known to the club’s President and Managing
Director and that the Claimant “started his preparation with the team, without
having signed a contract.”
24.
Moreover, the Respondent disputed the Claimant’s allegation that the private
agreement was signed on the same date as the contract. The Respondent
sustained that the Claimant is misstating the signature date in an attempt to
suggest that the private agreement constituted not a preliminary agreement, but
an auxiliary agreement.
25.
In continuation, the Respondent sustained that the fact that the contract provides
for the same amounts as the private agreement is evidence that it merely
materializes the private agreement signed two months earlier.
26.
Also, the Respondent pointed out that the two agreements together would result
in a salary that no club in the second division could offer. To this end, the
Respondent provided the employment contract that the Claimant had with
another second division club to demonstrate that the salary provided for in the
contract is comparable to what the Claimant was earning at the other club.
27.
Furthermore, the Respondent stressed that the Claimant was, between 30 August
2010 and 30 June 2011, only entitled to the amount of EUR 31,347.11 (EUR
Player T, from country S / Club L, from country G
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7,414.40 net as monthly salaries (the club holds that the amount of EUR 857 is a
gross amount and that, therefore, the net amount is EUR 741,44), EUR 932.71 net
in bonuses and EUR 23,000 for the instalments due on 30 November 2010 and 28
February 2011). The Respondent deemed that the promotion bonus did not fall
due, since the promotion was only achieved due to a sanction imposed on
another club, and not due to sporting achievements of the Respondent. In this
respect, the Respondent insisted that the Claimant received, between 30 August
2010 and 30 June 2011, the amount of EUR 31,897.28:
- EUR 8,897.28 as his monthly salaries and bonuses;
- EUR 15,000 as the first instalment under the contract;
- EUR 3,325.27 as the payment “against the instalment of the 28-02-2011”;
- EUR 1,500 as the payment “against the instalment of the 28-02-2011”;
- EUR 3,174.73 as the payment “against the instalment of the 18-02-2011”;
According to the Respondent, “this amount correspondence to the full payment
of the balance of EUR 3,174.73 of the 28-02-2011 instalment, whereas the balance
of EUR 1,825.27 was paid out against the next instalment, i.e. that of the 30-082011.”
28.
Moreover, the Respondent sustained that for the second season the Claimant
should have received the total amount of EUR 13,490.94 between July to
November 2011 (EUR 3,490.94 for the monthly salaries of July to November 2011
plus the instalment due on 30 August 2011 in the amount of EUR 10,000). The
Respondent argued that the monthly salaries were mandatorily reduced following
the crisis in country G. In this respect, the Respondent held that the Claimant had
received EUR 10,122.20 as follows:
- EUR 2,796.93 as salaries for July to October 2011;
- EUR 500, as the payment “against the instalment of the 30-08-2011”;
- EUR 1,825.27 as the payment “against the instalment of the 30-08-2011”;
- EUR 5,000 paid in cash on 10 October 2011 “against the instalment of the 30-082011”.
29.
Therefore, the Respondent requested that the Claimant’s request is “dismissed,
apart from the amount of EUR 3,368.74, which we acknowledge as due and
payable to him.”
30.
In his replica, the Claimant insisted on the competence of FIFA, alleging that the
country G national arbitration bodies do not fulfil the principles established by
FIFA to be recognised as independent national arbitration bodies.
31.
As to the substance, the Claimant “confirmed his claim in its entirety” and
stressed that “there is not existing one document, which was confirming any
violation against the provisions of the contract in good faith and loyalty. Even if
Player T, from country S / Club L, from country G
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there was a violation, the Respondent could fine the Claimant. Therefore, after
lodging the claim, the Respondent fabricates imaginary incidents.”
32.
In its duplica, the Respondent reiterated its previous position and referred to the
earlier-mentioned CAS award.
33.
Upon request of FIFA, the Claimant stated that he was registered with Club B,
from country S, between January 2012 and May 2012. The Claimant indicated that
no agreement was signed but that, for the sake of good order, he wants to
disclose that he was paid the lump sum of EUR 5,000 upon registration as well as
five monthly salaries of EUR 500.
II.
Considerations of the Dispute Resolution Chamber
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 8 January 2012. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1
of the Procedural Rules states that the Dispute Resolution Chamber shall examine
its jurisdiction in the light of articles 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2012). In accordance with art. 24 par. 1 in combination
with art. 22 lit. b) of the aforementioned Regulations, the Dispute Resolution
Chamber would, in principle, be competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension
between a country S player and a country G club.
3.
However, the DRC acknowledged that the Respondent contested the competence
of FIFA’s deciding body on the basis of clause 10 of the employment contract,
asserting that the arbitration bodies of the country G Football Federation are
independent arbitration tribunals guaranteeing fair proceedings and respecting
the principle of equal representation of players and clubs.
4.
The Chamber noted that the Claimant, for his part, rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
In this respect, and first of all, the Chamber outlined that the employment
contract signed by and between the Claimant and the Respondent on 30 August
2010 contains a clause in accordance with which all disputes between the parties
Player T, from country S / Club L, from country G
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are settled by the Appeals Committee for the Resolution of Financial Disputes
(PEEOD) at first instance and the Court of Arbitration of the country G Football
Federation at second instance.
6.
Furthermore, the DRC noted that on 31 January 2012, the Court of Arbitration of
the country G Football Federation decided that the Respondent had a just cause
to terminate the employment contract dated 30 August 2010.
7.
With due consideration to the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and
Transfer of Players, it is competent to hear a matter such as the one at hand,
unless an independent 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 DRC referred
to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the Chamber
further referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which were issued on 1
January 2008.
8.
In this respect, the Chamber took into account that, on 22 July 2013, the CAS
issued an award, whereby it decided that the national arbitration bodies of the
country G Football Federation fulfill the requirements of equal representation
and of an independent chairman and guarantee fair proceedings, in compliance
with the aforementioned applicable standards.
9.
In this context, the Chamber took note that the Greek deciding bodies at the basis
of the aforementioned CAS decision are the same deciding bodies as the ones
included in the jurisdiction clause of the employment contract dated 30 August
2010.
10.
On account of the above, the DRC referred to art. 22 lit. b) of the Regulations on
the Status and Transfer of Players and established that it is not competent to
adjudicate on the dispute in relation to the employment contract dated 30 August
2010, since a) art. 10 of the relevant employment contract constitutes a clear and
exclusive jurisdiction clause in favour of the PEEOD and the Court of Arbitration
of the country G Football Federation, and b) CAS confirmed that the relevant
country G deciding bodies fulfill the requirements of equal representation and of
an independent chairman and guarantee fair proceedings, i.e. the relevant
country G deciding bodies are competent to adjudicate on disputes between
players and clubs like the matter at hand.
Player T, from country S / Club L, from country G
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11.
In light of the above, the Chamber unanimously decided that the claim of the
Claimant in relation to the employment contract dated 30 August 2010 is
inadmissible.
12.
In continuation, the Chamber addressed the question whether it could
adjudicate on the dispute related to the private agreement dated 6 July 2010.
13.
First and foremost, the Chamber pointed out that contrary to the employment
contract dated 30 August 2010, the private agreement dated 6 July 2010 did not
contain any arbitration clause. What is more, after a thorough examination of
the decisions passed by the PEEOD and the Court of Arbitration of the country G
Football Federation, the Chamber came to the conclusion that said national
deciding bodies had not rendered a decision in relation to the private
agreement dated 6 July 2010, i.e. said private agreement had not been
mentioned in any of the decision of the PEEOD and the Court of Arbitration of
the country G Football Federation.
14.
On account of the above, and with reference to art. 22 lit. b) of the Regulations
on the Status and Transfer of Players, the Chamber decided that it was
competent to adjudicate on the dispute between the Claimant and the
Respondent in relation to the private agreement.
15.
In this respect, the Chamber observed that the Respondent contested the validity
of the private agreement indicating that it was i) signed by a person of the club
who was not authorized to legally bind the club, ii) was only signed in order for
the club to assess the player during training sessions, and iii) the private
agreement was a preliminary agreement which was only materialized by the
signing of the employment contract afterwards.
16.
Having duly examined the private agreement as well as the arguments of the
Respondent, the Chamber came to the conclusion that the private agreement
was valid and binding upon the parties. In particular, the Chamber held that the
position of the Respondent that the private agreement had no legal effect since
it had been signed on behalf of the Respondent by a non-authorized person,
cannot be upheld due to the fact that in accordance with the principle of good
faith, a principle to be respected by the parties during the conclusion of
contracts, the Claimant was in good faith to believe that Mr L was legally
authorized to sign on behalf of the Respondent. Equally, and in accordance with
the principle of the burden of proof, the DRC outlined that the Respondent
never provided documentary evidence demonstrating that the Claimant was
aware that Mr L was a mere scout of the Respondent at the moment of signing
the agreement. The Chamber further underlined that the agreement bear the
official stamp of the club, reason for which the Claimant was in good faith to
assume that the agreement was valid and binding upon the parties.
Player T, from country S / Club L, from country G
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17.
The Chamber was comforted in its conclusion by the fact that the private
agreement is called “Private Subsidiary Agreement” and that it is nowhere
stipulated in said agreement that, at a later stage, the parties would conclude
another contract. Furthermore, the Chamber remarked that there had been no
documentation provided by the Respondent from which it could be established
that the parties had intended to conclude one contract only.
18.
As a consequence, the Chamber decided that the private agreement is valid and
binding upon the parties and noted that it had been undisputed that the
instalments due on 30 May 2011 and 30 June 2011 had not been paid by the
Respondent. In view of the foregoing, and in accordance with the general legal
principle of pacta sunt servanda, the Chamber decided that the Respondent is
liable to pay to the Claimant the amounts of EUR 10,000 and EUR 15,000
corresponding to the instalments that fell due on 30 May 2011 and 30 June 2011.
19.
In addition, taking into consideration the Claimant’s request as well as the
constant practice of the Dispute Resolution Chamber in this regard, the members
of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on
the outstanding amount of EUR 25,000 as from 8 January 2012 until the date of
effective payment.
20.
Finally, the Chamber decided that in view of the fact that the country G national
arbitration bodies had already determined that the employment relationship
between the Claimant and the Respondent had been terminated by the
Respondent with just cause on 31 January 2012, the Chamber could not award
any of the amounts stipulated in the private agreement that fell due after 31
January 2012.
21.
The Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are
rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player T, is partially accepted, insofar as it is admissible.
2.
The Respondent, Club L, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 25,000 plus 5% interest
p.a. on said amount as from 8 January 2012 until the date of effective payment.
3.
In the event that the aforementioned sum plus interest is not paid by the
Respondent within the stated time limit, the present matter shall be submitted,
Player T, from country S / Club L, from country G
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upon request, to FIFA’s Disciplinary Committee for consideration and a formal
decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
Note relating to the motivated decision (legal remedy):
According to art. 67 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player T, from country S / Club L, from country G
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