Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 April 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
John Bramhall (England), member
Jon Newman (USA), member
Taku Nomiya (Japan), member
Mario Gallavotti (Italy), member
on the claim presented by the club,
Club A, country B
as Claimant
against the player,
Player C, country D
as Respondent 1
and the club,
Club E, country F
as Respondent 2
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 20 May 2014, the player from country D, Player C (hereinafter: the
Respondent 1), and the club from country B, Club A (hereinafter: the
Claimant), signed a document titled “Proposal Offer” containing the following
terms:
a) The total remuneration offered by the Claimant to the Respondent 1
amounts to EUR 30,000, to be paid in ten installments of EUR 3,000, for
the period from 1 August 2014 to 20 May 2015;
b) The document also contains a list of various benefits to be provided to
the Respondent 1, including “use of a car”, “accommodation for a rent of
not more than EUR 400”, “Bonuses for wins as per the internal regulation
of the club”, “one air ticket”, and “insurance”;
c) The document established that all emoluments (salary and bonuses) are
tax free.
2.
On 2 July 2014, the Respondent 1 signed an employment contract with the
club from country F, Club E (hereinafter: the Respondent 2), valid as from 1
July 2014 until 30 July 2017, and providing for a monthly remuneration
amounting to EUR 3,000.
3.
On 29 July 2014, the Claimant lodged a claim against the Respondent 1 and
the Respondent 2, for breach of contract and for inducement to the breach,
respectively. In its claim, the Claimant requested the following:
- EUR 30,000 as compensation corresponding to the salaries the
Respondent 1 would have received;
- EUR 1,063.73 corresponding to a plane ticket from country D to country B
on 1 July 2014 bought for the Respondent 1;
- Sporting sanctions to be imposed on the Respondent 1 and Respondent 2;
- Damages, costs and any other remedy.
4.
In particular, the Claimant explained that despite its efforts to communicate
with the Respondent 1 in order to request him to join the club’s trainings, the
Claimant was unable to locate him. Furthermore, the Claimant asserted that it
was informed that the player had signed a contract with the Respondent 2.
5.
The Claimant alleged that the Respondent 1 acted without just cause and in
breach of the offer, as he was unjustifiably absent from the trainings of the
Claimant and entered into more than one contract during the same period as
the one signed with the Claimant. According to the Claimant, the Respondent
2 induced the player into breaching the offer.
Club A, country B / Player C, country D and Club E, country F
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6.
The Claimant further stated that despite all its efforts, it was unable to locate
the player and therefore, unable to notify him of his breach.
7.
In his reply, the Respondent 1 rejected the Claimant’s claim. In this respect, the
Respondent 1 explained that he was not aware of any obligation assumed by
him with the Claimant, as the only employment contract he signed for the
2014/2015 season was with the Respondent 2. Moreover, according to the
Respondent 1, he never had direct contact with the Claimant, and the contact
was always made by his representative, Mr G.
8.
The Respondent 1 held that he was convinced that the offer was not
contractually binding and that he only signed it to acknowledge receipt.
Furthermore, the Respondent 1 stated that since the date of the offer, nobody
from the Claimant’s staff contacted him.
9.
Also, the Respondent 1 declared that his representative immediately
communicated to a representative from the Claimant, that he did not accept
the proposal. The Respondent 1 sustained that he did not receive any
monetary sum or even the flight ticket from the Claimant.
10.
Lastly, the Respondent 1 stressed that the offer consisted of only a proposal,
conditioned to the materializing of a professional contract of employment,
which never happened, and that therefore, he felt free to sign an employment
contract with another club.
11.
In its response, the Respondent 2 rejected the Claimant’s claim. In this regard,
the Respondent 2 sustained that it did not recognize any contract or precontract between the Respondent 1 and the Claimant as there is none, besides
the one between the Respondent 2 and the Respondent 1.
12.
The Respondent 2 held that the player was introduced to it as a free agent,
whose last contract was terminated on 13 April 2014. Moreover, Respondent 2
sustained that the issuance of the requested ITC without any restrictions was
proof that the Respondent 1 was indeed free to sign an employment contract.
13.
In addition, the Respondent 2 asserted that it acted in good faith, and that it
did not know, nor did it need to know if any other agreement had been
concluded by the Respondent 1 or by his representative.
14.
Finally, the Respondent 2 declared that it was never informed by the Claimant
of the situation.
15.
In its replica, the Claimant denied the allegations of both the Respondent 1
and the Respondent 2. The Claimant alleged that the sent offer and the
Club A, country B / Player C, country D and Club E, country F
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acceptance signed by the Respondent 1 created a contractual obligation
between the parties, which was breached by the Respondent 1.
16.
Furthermore, the Claimant stated that all the negotiations involved the
Claimant, the Respondent 1 and his agent. In this respect, the Claimant held
that it sent the flight ticket bought directly to the player and to his agent.
17.
Also, the Claimant sustained that the Respondent 2, although informed by the
representative of Respondent 1 that the latter had already signed a precontract with the Claimant, induced the Respondent 1 into rejecting it by
claiming that the Respondent 1 was not bound by the offer. As a consequence,
the Claimant maintained its claim in full.
18.
In his duplica, the Respondent 1 repeated his position. In this regard, he
explained that under his understanding, by refusing the offer and without
having received any sum or flight ticket, the offer ceased to exist.
19.
The Respondent 2 submitted its final comments in relation with this matter,
upholding its position. In this regard, the Respondent 2 held that the offer was
not a contractually binding document. Finally, the Respondent 2 sustained that
it was not aware of the existence of the offer by the Claimant until the claim
was lodged and that it only assumed an obligation with the Respondent 1
after confirming with his previous club and the respective federation that he
was free and that the previous contract was indeed terminated, which was
then verified by the issuance of the ITC without any restrictions.
II.
Considerations of the Dispute Resolution Chamber
1.
First, 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
29 July 2014. Consequently, the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2012;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
of the 2012, 2014 and 2015 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 2015) 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 club from country B, a player from
country D and a club from country F.
Club A, country B / Player C, country D and Club E, country F
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3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players 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 2012, 2014
and 2015), and considering that the present claim was lodged on 29 July 2014,
the 2012 edition of the Regulations on the Status and Transfer of Players
(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. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
However, the Chamber 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 view of the allegations and arguments presented by the parties involved in
the present matter, the Chamber underlined that in order to be able to
establish as to whether, as claimed by Claimant, a breach of contract had been
committed by the Respondent 1, it should first of all pronounce itself on the
issue of the validity of the relevant offer, which was signed by and between
the Claimant and the Respondent 1 on 20 May 2014.
6.
In this context, the DRC took note that the Respondent I did not challenge
having signed the document titled “Proposal Offer” on 20 May 2014. However,
the Chamber also noted that the Respondent 1 argued that he signed the
offer only to acknowledge receipt of it, considering it only a proposal and
therefore not considering it contractually valid and binding.
7.
The Chamber also took note that Respondent 2 considered the document
signed on 20 May 2014 as not contractually binding.
8.
In this regard, the Chamber was eager to refer to its longstanding and wellestablished jurisprudence and emphasised that a party signing a document of
legal importance without knowledge of its precise contents, as a general rule,
does so on its own responsibility. In light of the above, the Chamber concluded
that the Respondent 1’s reported signature to just acknowledge reception was
not a valid cause to consider the document he signed as null and void and
therefore, not valid and binding.
9.
Having stated the aforementioned, the Chamber highlighted 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 contract, such as the parties to the
Club A, country B / Player C, country D and Club E, country F
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contract and their role, the duration of the employment relationship and the
remuneration payable by the employer to the employee, i.e. respectively, the
Claimant and the Respondent I.
10.
After a careful study of the contract, the Chamber concluded that all such
essential elements are included in the pertinent employment contract, in
particular, the fact that the contract establishes that the Respondent I has to
render his services to the Claimant during a fixed period of time, which, in
exchange therefor, has to pay to the Respondent I a staggered remuneration.
11.
On account of the above and on the basis of the applicable Regulations, the
Chamber came to the firm conclusion that the arguments of the Respondent 1,
as well as the arguments of Respondent 2, cannot be upheld and that the offer
signed by and between the Claimant and the Respondent 1, on 20 May 2014,
was a valid employment contract binding the parties as for the 2014-2015
season.
12.
Having so found, the Chamber followed its analysis and turned its attention to
the question of the alleged breach of contract without just cause by the
Respondent I.
13.
In this respect, the Chamber was eager to highlight that based on the parties’
respective statements and the documentation available on file, it was
undisputed that the Respondent 1 never joined the Claimant in order to offer
his services to the Claimant in accordance with the relevant employment
contract. Also, it remains undisputed that the parties did not have any more
contact after signing the employment contract on 20 May 2014.
14.
It was taken into account by the DRC that the Claimant sustained that it could
not reach the Respondent 1 again after 20 May 2014, while Respondent 1
sustained that he never had direct contact with the Claimant and that all the
approaches were made through his representative, but providing no evidence
of his allegation.
15.
In this respect, the chamber took note that the Respondent 2, on its part,
argued that it acted in good faith as it did not have any knowledge of an
alleged previous contract signed by the Respondent 1, as the Respondent 1
was introduced to it as a free agent. It was further noted that the Respondent
2 sustained that there were no problems with the release of the ITC of the
Respondent 1 and that the Claimant never contacted it to notify it with any
issue in connection with the Respondent 1.
16.
In this context, the Chamber 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,
Club A, country B / Player C, country D and Club E, country F
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but not limited to, the registration procedure in connection with the
international transfer of a player, which is the sole responsibility of a club and
on which a player has no influence. As regards to the case at stake, no ITC was
requested by the Claimant. Bearing in mind that according to Annexe 3 of the
Regulations an ITC request depends on the new club’s application to the new
association to register a professional, the club is actually in the position to
prevent the occurrence of the registration by willfully choosing not to proceed
with the application for an ITC request. The Chamber emphasized that, in
accordance with art. 2 par. 1 of Annexe 3 of the Regulations, an application to
register a professional shall be accompanied by a copy of the contract between
the new club and the professional.
17.
Subsequently, the Chamber recalled that both parties had acknowledged that
there was no further contact between them after the date of the signature of
the employment contract.
18.
The DRC then analyzed the fact that the Claimant failed to provide evidence to
show its intention to carry out its obligations as agreed in the offer.
Furthermore, the DRC took note that the Claimant failed to provide any
evidence to show its intention to bring the Respondent 1 to the club, in order
for him to comply with the agreed contractual conditions, after the signature
of the employment contract.
19.
In this context, the DRC noted that the Claimant did not provide any evidence
in regards to an invitation sent to the Respondent 1 to start trainings with the
club, or that it sent the Respondent 1 a formal contract after the signature of
the “Proposal Offer”. Moreover, the Claimant did not provide any evidence in
relation to an attempt made to register the Respondent 1 with it.
20.
It was also considered by the members of the Chamber, that the Claimant did
not submit any evidence regarding its allegation of sending the alleged flight
ticket bought directly to the Respondent 1 or his representative.
21.
Therefore, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance
with which any party claiming a right on the basis of an alleged fact shall carry
the burden of proof, the Chamber concluded that the Claimant had failed to
present any documentation in support of its position. In particular, the
members of the Chamber observed that the Claimant was not able to
corroborate that at least it tried to contact the Respondent 1 in order to
inform him about joining the club, or that it had tried to register him.
22.
On account of all the above circumstances, in particular, by not inviting the
Respondent 1 to trainings, not offering a formal contract that would have
shown the clear intention to formalize the contractual relationship, and by not
requesting the relevant ITC although this being the responsibility of the
Club A, country B / Player C, country D and Club E, country F
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Claimant, the Chamber established that the Claimant had no longer been
interested in the services of the Respondent 1. Therefore, in the Chamber’s
view, no breach of contract by the Respondent 1 could be established.
23.
The members of the Chamber concluded their deliberations by establishing
that the claim of the Claimant is entirely rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is rejected.
*****
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
Club A, country B / Player C, country D and Club E, country F
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