Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 11 April 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Alex andra Góm ez Bruinew oud (Uruguay ), member
S tefano S artori (Italy ), member
Daan de Jong (the Netherlands ), 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 31 August 2014, the player of Country B Player A (hereinafter: the Claimant or
the player) and the club of Country D Club C (hereinafter: the Respondent or the
club) concluded an employment contract (hereinafter: the contract) valid as from its
date of signature until 31 May 2016.
2.
According to art. 1 of the contract, the Claimant was entitled to a monthly salary of
EUR 4,000 for the “first year of the contract” and of EUR 4,500 “for the second year”.
Moreover, in accordance with art. 5 of the contract, the Claimant was also entitled
to a sign-on fee of EUR 5,000 and to EUR 5,000 “in December”.
3.
Art. 5 of the contract stipulates that “in case the player will have other offers from
another team inside and outside the country, the amount profited by his departure
is not less than 300.000 (three hundred thousand euro) euro and [the player] have
profit 60% of this amount and [the club] 40% of this amount for the January
transfer period 2015 and for the transfer period summer 2015 after European cups
this agreement will be 50% for both parties, the clause will be negotiable”.
4.
Pursuant to the last clause of the contract, “disagreements will be solved by good
understanding, or else the competence for this will be of FSHF, UEFA/FIFA and TAS”.
5.
According to the player, on 3 December 2015 the Respondent and the club of
Country E Club F (hereinafter: Club F) entered into an agreement for his transfer,
with effect as of 1 January 2016. Pursuant to art. 2 of said agreement, Club F
committed to pay the Respondent a transfer compensation of EUR 350,000 within
15 July 2016.
6.
On 3 January 2017, the player lodged a claim against the club in front of FIFA,
requesting the following:
a) EUR 210,000, plus 5 % interest p.a. as of 15 July 2016, corresponding to the
remuneration provided under art. 5 of the contract;
b) EUR 10,000 as contribution to the player’s legal fees and costs.
7.
In his claim, the player argued that, pursuant to art. 5 of the contract, he was
entitled to EUR 210,000, corresponding to 60% of the compensation allegedly
received by the club for his transfer to Club F (i.e. EUR 350,000).
8.
Moreover, the Claimant affirmed that, despite the Respondent allegedly promised
to pay him the aforementioned amount, he did not receive the relevant payment.
9.
In its reply, the club entirely rejected the player’s arguments and first affirmed that,
on 31 August 2015, the player and the club concluded a new employment contract
Player A, Country B / Club C, Country D
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(hereinafter: the new contract), valid as from its date of signature until 30 June 2017,
which replaced the contract concluded on 31 August 2014.
10.
According to art. 6 par. 1 of the new contract, the player was entitled to a monthly
salary of EUR 7,000.
11.
Art. 10, par. 1 of the new contract provides that “the rights for the transferring of
the Player’s Card to any third party, throughout the duration of this contract, will
be owned in the scale of 100% (one hundred percent) by the Club”.
12.
Pursuant to art. 14, par. 2 of the new contract, “all disputes concerning the
interpretation and implementation of this contract, the first will be subject of an
attempt for an amicable solution. Otherwise, competent to resolve their dispute will
be only the National Dispute Resolution Chamber of the Football Association of
Country D”.
13.
Art. 15, par. 1 of the new contract stipulates that the same “supersedes all previous
agreements between the parties, verbal or written”.
14.
On the basis of the content of art. 14 par. 2 of the new contract, the Respondent
contested FIFA’s jurisdiction and argued that the National Dispute Resolution
Chamber of the Football Association of Country D (hereinafter: the NDRC) was
exclusively competent to deal with the dispute. In particular, the club referred to
art. 2 and 12 of the regulations of the NDRC, pursuant to which such body is
competent solely for disputes between club affiliated to the Football Association of
Country D (hereinafter: Football Association of Country D) and players registered
with such clubs.
15.
As to the merits, the Respondent maintained that the parties entered into a new
employment relationship on 31 August 2015 by signing the new contract, which
rendered null and void the former contract dated 31 August 2014. In this context,
the club also argued that, pursuant to art. 10 par. 1 of the new contract, the player
“had no economic right over his player’s card” at the moment of his transfer to Club
F on 3 December 2015.
16.
Furthermore, the Respondent affirmed that, on 25 December 2015, the player and
the club signed a “joint-statement” (hereinafter: the joint statement) whereby they
acknowledged they had signed the new contract on 31 August 2015 and that the
club had concluded an agreement for the transfer of the player “to a third party”
to take place in January 2016. Moreover, they declared that:
“I. The player has no financial or legal pretenses regarding any obligations carried
out from the club towards him;
II. The player will not proceed in front of any judicial body, whether domestic or
international, as the circumstance might induct, for the payment of any
remuneration by the club;
Player A, Country B / Club C, Country D
3
III. The club is entitled to receive the compensations for the training of the player
and any transfer fee relative to the economic rights over the player’s card” (note:
joint-statement on file).
17.
Consequently, the Respondent held that it did not have any financial obligation
towards the player, as confirmed by the content of the alleged joint statement.
18.
In his replica, the Claimant reiterated his initial requests and denied having signed
the new contract and the joint-statement. Moreover, he affirmed that his signature
on both the aforementioned documents was forged.
19.
In addition, the club refuted the competence of the NDRC to deal with the dispute,
arguing that such body was, in any case, competent exclusively for domestic
disputes.
20.
In its duplica, the Respondent insisted on its previous arguments and reaffirmed that
the player had signed the new contract and the joint-statement.
21.
In this context, the Respondent also reiterated that only the NDRC was competent
to deal with the dispute and maintained that such body was impartial, it guaranteed
fair proceedings and it was composed by the representatives of the clubs and players
elected in equal number, as sanctioned by the NDRC regulations. Moreover, the club
maintained that the NDRC was competent regardless of the registration of the
player with a club affiliated to the Football Association of Country D being “current
or past”.
22.
Furthermore, the club argued that art. 5 of the contract was applicable only in case
the transfer of the player would occur either during the transfer window of January
2015 (allegedly between 1 and 31 January 2015) or during the transfer window of
the summer 2015 (allegedly between 22 June and 7 September 2015). Consequently,
as the agreement for the transfer of the player was executed on 3 December 2015,
the club argued that the claim of the player had no contractual basis.
23.
According to the information available on the Transfer Matching System (TMS), on
1 December 2015 the Respondent and Club F concluded an agreement for the
transfer of the player, providing a transfer compensation of EUR 900,000 payable in
two instalments on EUR 450,000 each on 15 January and 15 July 2016 respectively.
Furthermore, according to such agreement, the club was entitled to the following
additional transfer compensation:
- EUR 50,000, payable on 15 January 2017, if Club F “qualifies for the group stages
of the UEFA Europa League of the season 2016-2017“;
- “a sell on fee of 10% of the net surplus value realized by [Club F] on the occasion
of the future permanent transfer” of the player. This is 10% of the transfer
compensation received by Club F on the occasion of the future permanent transfer
of the player over and the above the amount of EUR 900,000.
Player A, Country B / Club C, Country D
4
24.
Upon FIFA Administration’s invitation to the Claimant and the Respondent to
provide their comments on the above-mentioned TMS information, the player
amended his claim by formulating the following final request:
a)
“at least” EUR 708,000, allegedly corresponding to 60% of the total transfer
compensation received by the club, plus 5% interest p.a. on such amount as
form 15 July 2016;
b)
EUR 20,000 as contribution to the player’s legal fees and costs;
c)
Sporting sanctions on the club.
25.
In particular, the Claimant argued that the club received a total transfer
compensation of “at least” EUR 1,180,000, composed of the following items:
a)
EUR 900,000 as transfer compensation set out in the transfer agreement
dated 1 December 2015;
b)
EUR 50,000 for the bonus payable in case of the Club F’s qualification to the
UEFA Europa League group stage of season 2016-2017;
c)
EUR 230,000 for the sell on fee provided in the transfer agreement dated 1
December 2015 (cf. point 23 above), based on an alleged transfer
compensation of EUR 3,200,000 received by the club Club F for the transfer
of the player to the Club G in July 2018.
In this respect, according to the information available in the TMS, the player was
transferred from Club F to Club G in July 2018 against a fixed transfer compensation
of EUR 3,200,000.
26.
In reply to the final requests of the Claimant, the Respondent reiterated its previous
argumentations.
27.
Despite having being requested to do so by the FIFA Administration, the Respondent
did not provide the original version of both the contested documents, namely the
new contract and the joint statement.
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 3 January
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.
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 would, in principle, be
competent to deal with the matter at stake, which concerns an employment-related
Player A, Country B / Club C, Country D
5
dispute with an international dimension between a player of Country B and a club
of Country D.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of art. 14 par. 2 of the new
contract allegedly signed on 31 August 2015, alleging that the competent body to
deal with any dispute deriving from the relevant employment contract is the
National Dispute Resolution Chamber of the Football Association of Country D.
4.
On the other hand, the Chamber noted that the Claimant insisted on the
competence of the FIFA DRC to adjudicate on the claim lodged by him against the
Respondent and affirmed that his signature on the new contract allegedly signed
on 31 August 2015 was forged.
5.
Taking into account all the above, in particular that the Respondent challenged
FIFA’s jurisdiction on the basis of a clause (i.e. art. 14 par. 2) contained in the new
contract, the validity of which was contested by the Claimant, the Chamber deemed
first necessary to assess whether or not such new employment contract had been
concluded between the player and the club. In so doing, 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
Respondent to prove the conclusion of the new employment contract with the
Claimant.
6.
Having stated the above, the Dispute Resolution Chamber recalled that the Claimant
affirmed that it did not sign the new contract dated 31 August 2015 and maintained
that the copy of such new contract remitted by the Respondent was forged.
7.
What is more, the members of the Chamber stressed that the Respondent, despite
having been invited by the FIFA administration to do so, was unable to provide an
original specimen of the disputed contract, namely the new contract of 31 August
2015.
8.
At this stage, the Dispute Resolution Chamber considered appropriate to remark
that, as a general rule, FIFA’s deciding bodies are not competent to decide upon
matters of criminal law, such as the ones of alleged falsified signature or documents,
and that such affairs fall into the jurisdiction of the competent national criminal
authority.
9.
In continuation, the DRC recalled that, according to art. 12 par. 6 of the Procedural
Rules, all documentation remitted shall be considered with free discretion and,
therefore, it focused its attention on the copy of the alleged new contract submitted
by the Respondent.
Player A, Country B / Club C, Country D
6
10.
On account of these considerations, the Chamber held that, in accordance with its
long-standing jurisprudence, the fact that the Claimant had only submitted a copy
of the disputed contract was, per se, insufficient to establish that the Claimant and
the Respondent had concluded the new contract on 31 August 2015.
11.
Therefore, on account of all the aforementioned considerations, the Dispute
Resolution Chamber decided that, since the Respondent had not been able to prove
that the new contract, containing the clause on the basis of which it challenged
FIFA’s jurisdiction, had not been validly concluded between itself and the Claimant,
there was no possibility for the Chamber to enter into the question whether or not
the aforementioned clause was applicable to present dispute.
12.
In view of the above, the Chamber, in accordance with the principle of the burden
of proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, established
that the Respondent’s objection to the competence of FIFA to deal with the present
matter had to be rejected and that the DRC is competent, on the basis of art. 22 lit.
b) of the Regulations on the Status and Transfer of Players, to consider the present
matter as to the substance.
13.
In continuation, 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 (edition
2018), and considering that the present claim was lodged on 3 January 2017, the
2016 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
14.
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 continued 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. 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).
15.
First, the Chamber noted that the parties, on 31 August 2014, entered into an
employment contract valid as of the date of signature until 31 May 2016,.
16.
In this context, the members of the Chamber took note that art. 5 of the contract
stipulated that “in case the player will have other offers from another team inside
and outside the country, the amount profited by his departure is not less than
300.000 (three hundred thousand euro) euro and [the player] have profit 60% of
this amount and [the club] 40% of this amount for the January transfer period 2015
Player A, Country B / Club C, Country D
7
and for the transfer period summer 2015 after European cups this agreement will
be 50% for both parties, the clause will be negotiable”.
17.
Moreover, the DRC acknowledged that it remained undisputed that, on 3 December
2015 the Respondent and Club F signed an agreement for the transfer of the player
to Club F as of 1 January 2016 providing a transfer compensation of EUR 350,000
payable within 15 July 2016.
18.
Furthermore, pursuant to the information available on the TMS, the Respondent
and Club F, on 1 December 2015, had also concluded another transfer agreement
for the transfer of the same player, providing the transfer compensation detailed
above (cf. point I.23) in favour of Club F.
19.
After having acknowledged the foregoing, the DRC took note that the Claimant
argued that the Respondent received a transfer compensation of EUR 1,180,000 for
the transfer of the player to Club F, as per the transfer agreement dated 1 December
2015. As a consequence thereof, the player claimed 60% of the aforementioned
amount, on the basis of art. 5 of the contract, and thus requested the payment of
“at least” EUR 708,000. In this context, the members of the Chamber also
acknowledged that the Claimant requested the payment of EUR 20,000 as
contribution to the player’s legal fees and costs.
20.
Equally, the DRC took note of the Respondent’s position. In this respect, the
Respondent alleged that, on 25 December 2015, the player and the club signed a
joint-statement whereby, inter alia, the Claimant apparently declared that he had
“no financial or legal pretenses regarding any obligations carried out from the club
towards him”. On account of the content of such joint-statement, the Respondent
concluded that the player’s claim should be rejected.
21.
Furthermore, the members of the Chamber duly noted that, according to the
Respondent, art. 5 of the contract was applicable only in case of transfer of the
player during the transfer window of January 2015 (namely between 1 and 31
January 2015) or that of summer 2015 (between 22 June and 7 September 2015). As
such, the Respondent argued that, as the transfer of the player to Club F did not
occur before 3 December 2015, the Claimant’s request lacked of contractual bases.
22.
Finally, the DRC took note that the Claimant rejected the Respondent’s
argumentations and, in particular, denied having signed the joint-statement on 25
December 2015. What is more, the Claimant maintained that his signature on said
document was forged.
23.
In view of the aforementioned dissenting positions of the parties in respect of the
question as to whether the Claimant had signed the joint-statement with the
Respondent on 25 December 2015, the members of the Chamber again referred to
art. 12 par. 3 of the Procedural Rules and concurred on the fact that it was up to the
Respondent to demonstrate that the Claimant had signed the join-statement and,
consequently, he had renounced to his pretensions towards the club.
Player A, Country B / Club C, Country D
8
24.
Having stated the above, the members of the Chamber stressed that the
Respondent, despite having been invited by the FIFA administration to do so, also
in this case was unable to provide an original specimen of the disputed document,
namely the joint-statement of 25 December 2015.
25.
With the above in mind and having recalled that FIFA’s deciding bodies are not
competent to decide upon matters of criminal law, such as the ones of alleged
falsified signature or documents, the Chamber confirmed that, in accordance with
its long-standing jurisprudence, the fact that the Claimant had only submitted a
copy of the joint-statement was, per se, insufficient to establish that the Claimant
had signed such document.
26.
Therefore, on account of all the aforementioned considerations, the DRC had no
other option than to conclude that the joint-statement could not be taken in
consideration and proceeded to examine the further argumentations of the parties.
In so doing, the members of the Chamber went to analyse art. 5 of the contract and
concurred on the fact that, in view of the diverging positions of the parties, the main
issue of the dispute consisted in assessing whether said clause was applicable to the
case at stake.
27.
With the above in mind, the members of the Chamber wished to recall that, by
means of the transfer agreements dated respectively 1 and 3 December 2015, the
player was transferred from the Respondent to Club F as of the month January 2016.
Moreover, the DRC wished to emphasise that such circumstances remained
undisputed by both parties.
28.
In continuation, the members of the Chamber analysed art. 5 of the contract and
came to the unanimous conclusion that said clause provides two concurrent
conditions for its application:
a) that the player is transferred to another club for not less than EUR 300,000;
b) that the transfer under lit. a) occurs either during “January transfer period 2015”
or during “the transfer period summer 2015”.
29.
Having stated the above, the DRC had no other option than to conclude that, as the
transfer of the player from the Respondent to Club F occurred in January 2016, the
basic condition for the application of art. 5 of the contract under point II.28 lit. b)
above was not met. Consequently, being such clause not applicable to the player’s
transfer from the Respondent to Club F, the members of the Chamber decided that
the player’s claim in this respect shall be rejected.
30.
Furthermore, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs, in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
Player A, Country B / Club C, Country D
9
31.
All the above led the Dispute Resolution Chamber to conclude that the claim of the
player has to be rejected.
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 article 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:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.: CAS directives
Player A, Country B / Club C, Country D
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